Gilmore v. McBride

• Decision Date: 14 October 1907
• Docket Number: 1,348.
• Parties: GILMORE v. McBRIDE.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F. 464

GILMORE v. McBRIDE.

No. 1,348.

United States Court of Appeals, Ninth Circuit.

October 14, 1907

A. G McBride (C. S. Johnson and A. J. Daly, of counsel), for plaintiff in error.

Charles Page, Edward J. McCutchen, and Samuel Knight, for defendant in error.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

DE HAVEN, District Judge.

This was an action at law to recover the value of services alleged to have been rendered to the defendant by the plaintiff as an attorney, in an action brought by the defendant to recover an undivided interest in a mining claim known as the 'Daisy Placer Claim,' situate in Nome mining district, Alaska. The complaint alleges that the reasonable value of the services so rendered was, and is, $2,500; that $644.75 has been paid on account thereof, leaving a balance of $1,855.25 due to plaintiff.

The answer put in issue the allegations of the complaint, and, in addition thereto, alleged that defendant did not employ plaintiff alone to conduct the litigation referred to in the complaint, but employed the firm of Davis & Gilmore for that purpose; that plaintiff was a member of that firm; that the agreement between defendant and said firm, in relation to such employment, was that the firm was to be paid a reasonable fee to be fixed by the defendant; that the amount of such fee was fixed by the defendant in the sum of $500 that plaintiff was paid $144.75 in excess of that amount; and defendant by way of counterclaim demanded a judgment against plaintiff for said sum of $144.75.

The case was tried by a jury, and a verdict rendered in favor of the plaintiff for the sum of $1,605.25, and for this amount and costs judgment was thereupon given in favor of the plaintiff. The cause is brought here by the defendant on writ of error.

1. It is most earnestly insisted by the plaintiff in error that the verdict is against the evidence. But the rule is:

'Unless there is an entire want of evidence upon which to base the verdict returned by the jury, such verdict is conclusive here as to every fact embraced within the issues submitted to the jury for decision. This results from the well-settled rule that on a writ of error the appellate court can only consider errors of law, and that the review under such a writ does not extend to matters of fact. ' Graham v Earl, 92 F. 155, 34 C.C.A. 267.

See, also, Zeller's Lessee v. Eckert, 4 How. 289, 11 L.Ed. 979; King v. Smith, 110 F. 95, 49 C.C.A. 46, 54 L.R.A. 708; Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732.

In this case there was a sharp conflict in the evidence as to the terms of the contract, under which the plaintiff rendered the services referred to in the complaint, and a like conflict upon the issue whether the plaintiff was alone retained by the defendant, or whether the firm of Davis & Gilmore was employed, and also as to the reasonable value of the services rendered by the plaintiff.

The case, then, upon the record before us, is not one in which there is no evidence at all to sustain the verdict, and, under the law as above stated, 'the verdict is conclusive here as to every fact embraced within the issues submitted to the jury for decision. ' The case of Central Railroad v. Pettus, 113 U.S. 116, 5 Sup.Ct. 387, 28 L.Ed. 915, cited by the plaintiff in error, in which the Supreme Court reduced the amount allowed by the Circuit Court to an attorney as a fee, does not sustain his contention that this court may, upon its own view of the evidence, determine whether the fee allowed to the plaintiff by the verdict was a reasonable one or not, and also whether the jury ought not to have found in favor of the plaintiff in error upon the other issues. The case cited was an equitable action, and cases in equity are heard in the appellate court upon the evidence; but, in an action at law, the rule is otherwise; and when, as here, the evidence is conflicting, the verdict must be accepted as a correct determination of the issues of fact.

The fact that, after the trial of the action in which the services here sued...