Dolph v. Speckart
| Decision Date | 06 January 1920 |
| Citation | 186 P. 32,94 Or. 550 |
| Parties | DOLPH v. SPECKART. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court Multnomah County; Robert Tucker, Judge.
Action by Chester V. Dolph against Harriet F. Speckart. Judgment for plaintiff, and defendant appeals. Affirmed.
See also, 179 P. 657.
Chester V. Dolph, an attorney at law, brings this action against Harriet F. Speckart to recover for personal services pursuant to a written contract. A verdict was rendered in favor of plaintiff, and from a judgment thereon defendant appeals.
Several years before entering into this contract defendant had been left a considerable amount of property by her deceased father, Adolph Speckart, who died in Butte, Mont., in 1903 leaving a will by which he devised and bequeathed one-third of his property to his widow, one-third to defendant, and the remaining one-third to his son. The shares of the defendant and the son, who were then minors, were to be paid to them when they became 21 years of age. They had arrived at that age prior to making this contract. The estate had never been settled, nor the defendant's share paid to her. The defendant's mother was appointed executrix of the will of Adolph Speckart, and completely administered the estate in Butte, Mont., several years prior to the execution of this contract. Some time before January, 1907, the defendant had demanded from her mother and her uncle, Leopold F. Schmidt who was the adviser of her mother, her share of the estate. This demand was not complied with, but the uncle, Leopold F Schmidt, was appointed administrator of the estate of Adolph Speckart, in Olympia, Wash. While these proceedings were pending plaintiff and defendant, on November 28, 1906, entered into a contract for the employment of the plaintiff as defendant's attorney. Under this contract the plaintiff performed services of the value of $128.50, as claimed in the first cause of action. This is admitted by defendant, and there is no issue concerning the same.
On January 12, 1907, plaintiff and defendant entered into another written contract, reciting that the plaintiff desired her attorney to obtain an amicable settlement of defendant's inheritance from the estate of her deceased father, and oppose a distribution of the estate until such amicable settlement could be obtained, and then providing in part as follows:
At the same time Harriet F. Speckart signed a letter of instructions in detail, directing the attorney to go to Olympia and protect her interests and obtain an offer of an amicable settlement, if possible, and also secure information as to the value of her interest in the estate. Thereupon plaintiff went to Olympia, and returned with a proposition of compromise, which was refused. On January 22, 1907, defendant notified the plaintiff to perform no further services for her, and attempted to cancel the contract. The plaintiff refused to consider the contract canceled, and notified the defendant that he was ready to perform his part of the same. The defendant employed other attorneys, and in September of that year instituted a suit against her mother and uncle in the United States Circuit Court for the Western Division of the Western District of Washington. In September, 1909, plaintiff brought this action, claiming a commission of 2 1/2 per cent. on $119,500, which he alleged "that defendant has now received, since said agreement of January 12, 1907, unconditionally and directly, money and property which has come to her out of the estate of her deceased father." The jury allowed the plaintiff the sum of $2,509.14, or two and one-half per cent. of the sum of $100,365.60.
E. E. Heckbert, of Portland, for appellant.
H. J. Bigger, of Portland, for respondent.
BEAN, J. (after stating the facts as above).
It is the contention of the defendant that she never received any money or property from her father's estate, within the meaning of the contract with the plaintiff; that the accounting in the federal court has not been completed, and that plaintiff under the terms of the contract is not entitled to any compensation at this time. This question is properly raised by a motion for a nonsuit. While this suit was pending in the federal court, defendant's mother, on July 20, 1909, deposited in the registry of that court the sum of $67,535.74, pursuant to a stipulation made between the respective counsel of Miss Speckart and her mother, which is in part as follows:
"Now, therefore, it is hereby stipulated that said defendant Henriette Speckart will, on or before the 1st day of August, 1909, deposit in said court all said moneys and other property capable of delivering, which is in part the subject of litigation herein admitted to belong to the complainant, and which is held by said Henriette Speckart, as trustee for the complainant, pending said litigation, or until further order of court; and it is further stipulated that pending the litigation or further order of court a monthly allowance of $250 per month, payable on the first day of each month, beginning June 1, 1907, be paid to the plaintiff out of said fund."
This stipulation was confirmed by an order of court of the same tenor July 30, 1909. The testimony in the present case also indicated that, pursuant to the stipulation and the order of the court, defendant's mother, as trustee, paid into the court, on or about July 30, 1909: certificate No. 36, 3,333 1/3 shares of the capital stock of the Olympia Brewing Company; certificate No. 74, 2,056 2/3 shares of the capital stock of the Salem Brewery Association; certificate No. 74, 4,814 2/3 shares of the capital stock of the Bellingham Bay Brewery; and certificate No. 79, 1,051 shares of capital stock of the Acme Brewing Company. The stocks so deposited were one-third of the shares held by the trustee in the different corporations, and certificates therefor were issued to Harriet F. Speckart. The testimony therefore tended to show that the title to the stock passed to this defendant, that she was entitled thereafter to the dividends thereon, and that she received such dividends and accepted the shares of stock as her property. On September 14, 1909, pursuant to a stipulation of the parties in that suit, the court ordered $50,000 of the funds in the registry of the court deposited by Mrs. Speckart, to be paid to the complainant, Harriet F. Speckart, said payment to be "without prejudice to the rights of any of the parties to the litigation herein pending," it being admitted, as the stipulation recites, "that the complainant is entitled to receive at least the sum of $50,000 of the said funds at this time." Under these stipulations and orders there was paid to the defendant. Harriet F. Speckart, $57,000, besides the deposit of the certificates of shares of stock. Afterwards the United States Circuit Court, preparatory to dismissing the complainant's bill, ordered the clerk to deliver to Henriette Speckart the above mentioned shares of corporation stock and all of the balance of the money on deposit. On account of this order, as we understand, the defendant claims that no right accrued to her by virtue of the shares of stock being deposited in the federal court. That decree, however, was afterwards reversed upon appeal, and the cause remanded for the trial court to find the account. Speckart v. Schmidt, 190 F. 499, 111 C. C. A. 331.
In order to prove the value of the brewery stocks the plaintiff produced evidence of bona fide sales of stock of each of the corporations, during the summer of 1909, which indicated that the stocks had an aggregate value of $43,432.05. Counsel for the defendant objected and excepted to the introduction of such testimony. When it becomes necessary to ascertain the value of articles for which there is no open market, evidence of prices realized at sales of such articles, held under conditions calculated to secure adequate returns, is admissible, provided that the time of sale is not too remote to raise a logical inference. 16 Cyc. 1141 et seq.; 13 Enc. of Ev. 512, 528; Bump v. Cooper, 20 Or. 527, 26 P. 848; Chaperon v. Electric Co., 41 Or. 39, 67 P. 928; Portland v. Investment Co., 64 Or. 410, 129 P. 756. There was no error in admitting such testimony.
In the present case the trial court charged the jury, in effect, that if the plaintiff was at all times ready, able, and willing to carry out the contract, and was prevented, without his fault, by defendant from doing so, then he would be entitled to his compensation. The court said:
"The court further instructs you that the language used in this contract, upon which Dolph seeks to recover, is, namely that, 'The party of the second part does hereby agree and promise to pay to the party of the first part, out of the moneys and property which may come to her out of said estate, unconditionally and...
To continue reading
Request your trial