Foley v. Kleinschmidt

• Decision Date: 13 May 1903
• Parties: FOLEY v. KLEINSCHMIDT et al.
• Court: Montana Supreme Court

72 P. 432

28 Mont. 198

FOLEY v. KLEINSCHMIDT et al.

Supreme Court of Montana

May 13, 1903

Appeal from District Court, Lewis and Clarke County; S. McIntire Judge.

Action by B. H. Foley, as administrator of the estate of Rollin P Blanchard, against Albert Kleinschmidt and others. From a judgment for defendants, entered on a nonsuit, plaintiff appeals. Affirmed.

Chas J. Geier, for appellant.

Massena Bullard, for respondents.

BRANTLY C.J.

This action was brought to recover of the defendants a judgment for a balance alleged to be due plaintiff's intestate for legal services rendered by him for the defendants. The complaint contains two causes of action. The first declares upon a contract in writing, under the terms of which the deceased undertook to prepare briefs in two certain causes in which the defendants herein were defendants, for the stipulated sum of $750, $200 of which were to be paid down, and the balance in installments of $250 each, upon the determination of the two causes, respectively, and entry of final judgments therein in favor of the defendants. The breach of the contract upon which recovery is claimed is alleged as follows: "That plaintiff well, promptly, and to defendants' entire satisfaction, prepared and furnished said briefs," and "that defendants, though often thereto requested, have not paid said sum, or any part thereof, exceeding about $250." There is no allegation that said causes have been determined in favor of the defendants or at all. The second cause of action is upon a quantum merit for services rendered in the same causes at the request of the defendants, of the alleged value of $1,000, no part of which has been paid by the defendants. Judgment is demanded for the sum of $1,500. At the hearing the second cause of action was abandoned, evidence being offered in support of the first only. This evidence established without contradiction--though it was made to appear that the briefs had been prepared and furnished to the defendants in accordance with the terms of the contract--that both of the causes mentioned in the contract had resulted in final judgments against the defendants; that appeals had been taken therefrom to this court; and that subsequently the appeals were dismissed by the defendants under the advice of other counsel regularly employed in the causes. At the close of plaintiff's evidence, and upon motion of the defendants, a nonsuit was granted, and...