Ferris v. Snively

• Decision Date: 07 March 1933
• Docket Number: 24184.
• Parties: FERRIS v. SNIVELY.
• Court: Washington Supreme Court

19 P.2d 942

172 Wash. 167

FERRIS v. SNIVELY.

No. 24184.

Supreme Court of Washington

March 7, 1933

Department 2.

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by E. A. Ferris against Elizabeth H. Snively, executrix of the estate of H. J. Snively, deceased. Judgment for plaintiff, and defendant appeals.

Modified.

Snively & Bounds and Robert J. Willis, all of Yakima, for appellant.

Grady &amp Velikanje and Stanley P. Velikanje, all of Yakima, for respondent.

STEINERT Justice.

Plaintiff brought this action to recover compensation for services rendered by him as a law clerk in the office of H. J Snively, an attorney, now deceased. The complaint contained two causes of action, one for compensation for services rendered between September 1, 1918, and December 31, 1930 for which $1,614.43, with interest, was alleged to be due and owing, and the other for compensation for services rendered between January 1, 1931, and April 18, 1931, for which $300 with interest, was sought to be recovered.

The answer consisted of a general denial, three affirmative defenses to the first cause of action, and one affirmative defense to the second cause of action. The three affirmative defenses to the first cause of action were: (1) That plaintiff had been paid in full; (2) that the cause of action, if any, was barred by the statute of limitations; and (3) that the services rendered were such as only a duly licensed and practicing attorney could perform, and that plaintiff was not such an attorney. The affirmative defense to the second cause of action was that the balance due and owing the plaintiff thereon had been tendered by defendant, refused by plaintiff, and thereupon paid into the registry of the court. The reply denied the allegations contained in the affirmative defenses. Upon a trial Before the court without a jury, plaintiff was allowed the sum of $455.67 on his first cause of action and $314.35 on the second cause of action. Judgment, segregating in a somewhat different manner, but totaling the same amounts, was thereupon entered, from which the defendant has appealed.

Some time in the year 1902 respondent became a cleark in Mr. Snively's office. As such, he served papers, kept the books, sent out statements, collected accounts, took care of the docket, and did other work of a clerical nature. Gradually, however, he began to perform duties that were of a legal nature, such as examining abstracts, preparing wills, handling matters in justice courts, and looking after uncontested probate matters. The arrangement proved mutually satisfactory to the parties. We are not advised what respondent's compensation was prior to September 1, 1918. On that day, however, Mr. Snively gave the respondent a written memorandum reading as follows:

'Yakima, Sept. 1st 1918

'Mr. E. A. Ferris: From and after Sep. 1st 1918 till further notice your compensation will be $1,600--per year payable in aliquot weekly payments and at the end of each year, all probate fees paid me individually during said year will be computed and if these Probate fees exceed Eighteen Hundred dollars, you will be entitled to one third of the amount in excess of said sum of $1,800--as additional compensation. H. J. Snively.'

Respondent alleged in his complaint that this memorandum became the basis of an agreement between him and Mr. Snively, with an oral modification thereto to the extent that the specified compensation of $1,600 was increased to $1,800. The evidence showed that up to the time of Mr. Snively's death on November 17, 1930, respondent was regularly paid the sum of $33.33 per week, aggregating an annual sum of $1,733.16. Upon the opening of the trial, respondent's counsel stated that, inasmuch as the oral modification could be substantiated only by evidence that would fall within the inhibition of Rem. Comp. Stat. § 1211, he would not attempt to prove his claim in so far as it was covered by the oral modification. Thus the portion of respondent's claim based on weekly compensation up to November 17, 1930, is out of the case.

Respondent then introduced evidence to the effect that shortly after the end of each year computations were made covering the amount of probate fees paid to Mr. Snively during the preceding year, and that, based on such computation, payments were made to respondent of his proportionate share of such fees, this being considered as additional compensation for services rendered by respondent under the agreement. The respondent claims, however, that Mr. Snively failed to account for certain probate fees paid him during the years 1920, 1922, 1928, and 1930. The amounts which he claims were unaccounted for are as follows: For 1920, $214.56; for 1922, $315; for 1928, $8.83; and for 1930, § 118.17, totaling $656.56. Upon the evidence submitted the court allowed respondent, upon these items, the following sums: For 1920, $67.67; for 1922, $139.50; for 1928, $8.83; for 1930, $133.17, together with interest on such amounts at the rate of 6 per cent. per annum from November 17, 1930. The respondent also introduced evidence to the effect that his weekly payments accruing between November 17, 1930, and December 31, 1930, had not been paid in full. Upon this item the court allowed him, upon what we think was clearly the weight of the evidence, the sum of $99.97, with interest amounting to $6.53.

After Mr. Snively's death, respondent continued his work in much the same way as he had done Before , except that he did not have Mr. Snively's supervision and direction, and except, also, that upon the request of Mr. Snively's family he did a good deal of work in connection with the probate of Mr. Snively's estate. About January 1, 1931, the agreement with Mr. Snively having theretofore been terminated by Mr. Snively's death, respondent was unwilling to continue on the basis of a weekly payment of $33.33, but thought that he should receive at least $50 per week, and so expressed himself to the representatives of the estate and the family. They, however, were unwilling to pay more. Respondent's status, so far as salary was concerned, was thus left more or less uncertain, although he continued to do the work until April 18, 1931. Between January 17, 1931, and April 18, 1931, eight salary checks were paid to respondent, five of them in the sum of $33.33 each, one in the sum of $50, and two in lump sums of $100 and $150, respectively. The total of these checks, together with the amount tendered into court by the appellant, was sufficient to pay respondent in full for his 1931 services, on the basis of $33.33 per week, but not sufficient to pay him in full on the basis of $50 per week. The trial court, evidently construing the arrangement after January 1, 1931, as a contract for services with no fixed compensation agreed upon, allowed him $50 per week on a quantum meruit basis. For this item, therefore, he allowed $300 over and above the amount already paid, together with interest thereon from April 18, 1931 to the time of trial, making a total of $314.35. According to the segregation made in the judgment, $420.85, with interest from February 4, 1932, was allowed for services rendered on the basis of weekly salary and the same made a part of the costs of administration, and $349.17 allowed for unpaid portion of the amounts to be annually computed, the same to be a claim against the estate.

The first, and principal, contention made by appellant is that the contract providing for the additional compensation, and the services performed in consideration thereof, were illegal, in that they violated Rem. Comp. Stat. § 139-4, which reads as follows: 'No person shall be permitted to practice as an attorney or counselor at law or to do work of a legal nature for compensation, or to represent himself as an attorney or counselor at law or qualified to do work of a legal nature, unless he is a citizen of the United States and a bona fide resident of this state and has been admitted to practice law in this state: Provided, that any person may appear and conduct his own case in any action or proceeding by or against him, or may appear in his own behalf in the small claims department of the justice's court; and provided further, that an attorney of another state may appear as counselor in a court of this state without admission, upon satisfying the court that his state grants the same right to attorneys of this state.'

Rem. Comp. Stat. § 139-22, makes a violation of this statute a gross misdemeanor. Appellant contends that the work performed by respondent for Mr. Snively and for the estate was of a legal nature, and such as could have been lawfully performed only by a properly qualified attorney admitted to practice law. While this defense was not specifically interposed to the second cause of action, but only to the first, the proof covered both, and no objection was raised on that score. We therefore deem the pleading amended to conform to the proof. It is admitted that respondent was not a qualified attorney, licensed to practice law. In order to clearly comprehend the facts upon which appellant's contention rests, it is well to have the evidence Before us. Respondent testified as follows:

'Q. In fact, Mr. Ferris, to make a long story short, in a great many of these cases included in your claim you did everything there was to be done in the probate proceedings? A. Usually I did.

'Q. Both in and out of court? A. Yes, in the matter of contest I didn't though.

'Q. You also included in that work, mortgages, deeds, wills, contracts, leases and gathered information to prepare those different instruments and advised and handled the instruments, generally speaking, that is correct? A. Yes, sir, under his direction. * * *

'Q. Now, these probate

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