Harwood v. Scott
| Citation | 186 P. 693,57 Mont. 83 |
| Decision Date | 02 January 1920 |
| Docket Number | 4071. |
| Parties | HARWOOD v. SCOTT. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by E. N. Harwood against Sibyl Scott, as administratrix of the estate of Rachel E. Williams, deceased. From a judgment in his favor granting only part of the relief demanded plaintiff appeals. Reversed and remanded.
J. A Poore, of Butte, for appellant.
J. E Healy, of Butte, for respondent.
On August 14, 1906, Rachel E. Williams, as administratrix of the estate of Henry Williams, deceased, filed in the district court of Silver Bow county her fourth annual report and account, in which she recited, among other things:
The account was finally submitted to the court on February 5, 1906, and by the court taken under advisement. On March 3, Rachel E. Williams died, and thereafter the court rendered its decree, settling and allowing the said account, and caused the decree to be entered nunc pro tunc as of February 18, 1906. In its said decree the court made the following findings and order:
"The sum of $1,800 is a reasonable and just amount to be allowed said administratrix for the services rendered by her said attorney during the period mentioned *** and the credit of said $1,800 ought to be and is hereby allowed the administratrix as reasonable compensation for the said services rendered by the said attorney on behalf of the estate, as specified in the account. ***
On May 16, 1916, the defendant, Sibyl Scott, was appointed administratrix of the estate of Rachel E. Williams, and on October 10, 1916, being within the time allowed by law, Harwood filed a claim with said administratrix against the estate of Rachel E. Williams, verified by himself by affidavit conforming to the statutory requirements, which claim recited, "For the principal amount allowed to said E. N. Harwood by decree and order of the above-entitled court, as entered February 18, 1906, a copy of which is hereto attached, for legal services rendered by him for and on behalf of the said Rachel E. Williams, as administratrix of the estate of Henry Williams, deceased, prior to the said date, for which she received credit in her account as administratrix, approved and allowed by the court, but said sum and no part thereof has been paid to the said E. N. Harwood, $1,800.00;" for interest on the principal sum; for $500 for services from August 12, 1906, to the date of the death of said Rachel E. Williams, rendered for the estate; and an additional claim for $500 for professional services rendered said Rachel E. Williams personally, during the same period, with interest on each of the latter sums claimed.
This claim being deemed disallowed, Harwood commenced action within three months, stating three separate causes of action: The first for the $1,800, with interest; the second for $500, with interest; and the third for $500, with interest.
A general demurrer was interposed and overruled, whereupon an answer was filed, denying generally the allegations of the complaint, and pleading, as a special defense, that all the indebtedness of Rachel E. Williams to plaintiff had been discharged by payment, which was controverted by reply.
On the trial, the court excluded all evidence as to the first cause of action, and, finally, by order, dismissed the first cause of action, on the ground and for the reason that:
"The claim alleged in the complaint is different from the claim filed with the administratrix; that the claim filed with the administratrix was based on an order or decree of court; that the claimant assumed that it was a judgment in his favor and acted accordingly; *** that the claim sued upon is not a claim on a judgment, but upon an express contract for services rendered."
The parties thereupon proceeded to trial upon the second and third causes of action, resulting in verdict for plaintiff. Plaintiff appeals from that portion of the judgment dismissing his first cause of action.
The charging part of the first cause of action stated as follows:
"(3) That during said period of time from the 12th day of August, 1905, to the 12th day of August, 1906, plaintiff, at the special instance and request of said Rachel E. Williams, as said administratrix, and under employment by her as her attorney and counselor at law as administratrix, rendered and performed professional legal services and counsel *** in and about matters and things appertaining to said estate, *** mentioned in the fourth annual account and report of said *** administratrix *** and mentioned in the decree of said court thereafter duly made, *** a copy of which, *** marked 'Exhibit A,' is hereto annexed as a part hereof.
(4) That *** said Rachel E. Williams promised and agreed to pay plaintiff the sum of $1,800, or whatever portion thereof said court *** found to be reasonable and just *** at the time said court by its decree settled and approved said account. *** And said Rachel E. Williams stated in her said account that there was due plaintiff the sum of $1,800 for said legal services. *** (5) That in said decree and order said court found *** that said sum of $1,800 is a reasonable and just amount," etc.
-quoting the language of the order; that, by said agreement and the order and decree of the court, the said sum became due and payable to plaintiff from Rachel E. Williams; and that no part thereof has been paid.
The respondent contends: (1) That plaintiff was incompetent, under sections 7891, 7892, Revised Codes, to testify, and therefore incompetent to verify his claim, and the claim as presented was therefore as though not verified and invalid. (2) That the claim sued upon was not the claim presented to the administratrix, and therefore the judgment of the court in dismissing the case as to the first cause of action was correct.
1. With reference to counsel's first contention, he has evidently overlooked the fact that section 7891, Revised Codes, was amended February 28, 1913, before the filing of the claim, by granting to the court discretion to permit testimony concerning direct transactions between the parties named in the section, "when it appears to the court that without the testimony injustice will be done." Laws 1913, p. 57. The contention is without merit; the claimant was qualified under the law to verify his claim, and on a trial on its merits might either have proven his case without taking the stand himself, or he might have secured permission of the court to testify as to transactions between himself and decedent.
2. In upholding the action of the trial court, dismissing the first cause of action, it is claimed by the respondent that the presentment was what was erroneously assumed to be of a judgment in favor of the claimant, while the suit was upon an account stated or for the reasonable value of the services rendered, and relies upon the following cases: Brown v Daly, 33 Mont. 523, 84 P. 883; Vanderpool v. Vanderpool, 48 Mont. 448, 138 P. 772; Barthe v. Rogers, 127 Cal. 52, 59 P. 310; Lichtenberg v. McGlynn, 105 Cal. 45, 38 P. 541; and Stockton Bank v. McCown, 170 Cal. 600, 150...
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