Higgins v. J. B. Farnum Co., 7989.

Decision Date09 July 1938
Docket NumberNo. 7989.,7989.
Citation200 A. 538
PartiesHIGGINS v. J. B. FARNUM CO.
CourtRhode Island Supreme Court

Exceptions from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Action of assumpsit by John R. Higgins against the J. B. Farnum Company for an attorney's fee. Decision for plaintiff, and defendant brings exceptions.

Case remitted to the superior court for a new trial, unless plaintiff files a remittitur, or entry of judgment for plaintiff, if such remittitur be filed.

William A. Gunning, of Providence, for plaintiff. Kennedy & Greene, of Woonsocket, for defendant.

BAKER, Justice.

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This is an action of assumpsit for an attorney's fee. The case was heard in the superior court by a justice thereof sitting without a jury. He decided for the plaintiff in the sum of $2,180, and thereupon the defendant prosecuted to this court its bill of exceptions containing only an exception to such decision.

The plaintiff is seeking to recover what he alleges to be the fair and reasonable value of his services to the defendant, under the facts and circumstances as disclosed by the evidence. According to his bill of particulars he fixes the value of such services at $2,530. He does not allege or attempt to prove any agreement or understanding between himself and the defendant in regard to the payment for his services. The defendant, on the other hand, contends that on several occasions its president, George W. Carroll, was informed by the plaintiff that his fee, which is now the subject of the present case, would be small, and that the defendant proceeded on that basis with the litigation for which the plaintiff's bill was rendered. The defendant also takes the position that the plaintiff's fee, as allowed by the trial justice, is unreasonable and excessive in view of the services rendered, the amount involved and the resuit of the litigation to which the defendant was a party. The plaintiff denies making any statement to George W. Carroll concerning the size of the former's fee.

The trial justice found specifically as a fact that no statement was made to George W. Carroll by the plaintiff that he would charge only a small fee for the work he was engaged in on behalf of the defendant. Such a finding of fact by the trial justice, based on conflicting evidence, will not be disturbed by us unless it is clearly wrong. He has seen and heard the witnesses testify. We have not had that advantage. We have examined the evidence on the matter in question and cannot say that the trial justice was clearly wrong in finding as he did. The only issue remaining for determination, therefore, is whether the decision of the trial justice, that $2,180 represents the reasonable value of the plaintiff's services to the defendant, is supported by the evidence, or is clearly erroneous as the defendant contends.

The plaintiff presented as witnesses in his behalf two attorneys of standing and experience who testified in substance that the bill of $2,530 rendered by the plaintiff to the defendant was reasonable considering the services performed. They testified in some detail as to the propriety of the charges made by the plaintiff for the various types of legal work done by him. An attorney, likewise of standing and experience, testified for the defendant that in his opinion a fair and reasonable lump sum charge for the legal work done by the plaintiff for the defendant would be $600, considering the amount involved and the result obtained. On the basis of the plaintiff's itemized bill, taking into consideration the time spent by the plaintiff and the different kinds of services performed by him for the defendant, this witness placed a figure of $1,130 as reasonable for the plaintiff's services.

The evidence shows that the services, for which the plaintiff rendered the bill in suit, began in October, 1931. They grew out of certain provisions in a lease wherein one John Johnston was lessor and the defendant company was lessee. This lease was to expire December 31, 1931. The plaintiff was employed by William Brown, an officer of the defendant, to represent that company in matters connected with the lease. The lessor, Johnston, was then dead, and the Rhode Island Hospital Trust Company was executor and trustee under his will.

It appears from the evidence that the first two matters handled by the plaintiff for the defendant, following his employment, were not of a serious or complicated character. The first was the filing of a petition in the probate court of Woonsocket praying that the defendant be permitted to file out of time a claim against the Johnston estate. This petition was granted by that court, from which decision the executor of said estate took an appeal to the superior court. This appeal was dismissed after a short hearing in that court and the claim in question was thereafter filed in the probate court, and later disallowed by the executor. The second matter was the bringing of an action in the superior court on this disallowed claim. This case was on the trial calendar in that court several times, but was never tried.

By far the greater portion of the plaintiff's services were performed in connection with a case brought in May, 1933 by the Rhode Island Hospital Trust Company, trustee, against the defendant, to recover rent and interest amounting at that time to something over $1,500. On behalf of the defendant, in that action, the plaintiff filed a plea in set-off of about $5,000. This case was tried in the superior court, and thereafter heard in this court on the defendant's exceptions. It is not necessary to refer to this litigation in detail. The case is reported in Rhode Island Hospital Trust Co. v. J. B. Farnum Co., R.I., 191 A. 508, and in it the defendant was ultimately successful. After the above litigation was terminated, the plaintiff, in June, 1937, sent to the defendant an unitemized lump sum bill amounting to $984, stating that the case had been "a typical salvage case" in which the usual contingent fee was fifty per cent. This bill apparently was figured at one-half of the amount of rent and interest which the Rhode Island Hospital Trust Company, trustee, had unsuccessfully sought to recover from the defendant. The latter, acting through George W. Carroll, refused to pay this bill, claiming it was too large. The sending of this bill did not amount to an account stated, in view of the fact that the defendant declined to accede to its terms. See Gunning v. Rosen, 49 R.I. 59, 139 A. 790. Since the defendant would not agree...

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5 cases
  • United States v. Gray
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • November 24, 1970
    ...v. United States Rubber Co., 102 R.I. 220, 229 A.2d 620 (1967); Lisker v. Monti, 74 R.I. 310, 60 A.2d 485 (1948); Higgins v. J. B. Farnum Co., 61 R.I. 262, 200 A. 538 (1938); Page v. Avila, 55 R.I. 52, 177 A. 541 (1935); Gorman v. Banigan, 22 R.I. 22, 46 A. 38 (1900); see also Flynn v. Pear......
  • Palumbo v. U.S. Rubber Co.
    • United States
    • United States State Supreme Court of Rhode Island
    • May 17, 1967
    ...who rendered the services. Gorman v. Banigan, 22 R.I. 22, 46 A. 38; Page v. Avila, 55 R.I. 52, 177 A. 541; Higgins v. J. B. Farnum Co., 61 R.I. 262, 200 A. 538, 117 A.L.R. 1003; Lisker v. Monti, 74 R.I. 310, 60 A.2d 485. Each of these factors is important, but no one is controlling. Lisker ......
  • Flynn v. Pearce
    • United States
    • United States State Supreme Court of Rhode Island
    • December 4, 1969
    ...overlooked the testimony of Jessie Mae and, further, that he ignored the rule laid down by this court in Higgins v. J. B. Farnum Co., 61 R.I. 262, 200 A. 538, 117 A.L.R. 1003. We will consider these contentions It was the thrust of Jessie Mae's testimony that each time plaintiff was engaged......
  • Lisker v. Monti
    • United States
    • United States State Supreme Court of Rhode Island
    • July 30, 1948
    ...not be repeated here. They have been applied in later cases. See Page v. Avila, 55 R.I. 52, 177 A. 541, and Higgins v. J. B. Farnum Co., 61 R.I. 262, 200 A. 538, 117 A.L.R. 1003, and we declare that they are still applicable to the determination of the question presented herein. We are sati......
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