Idaho Gold Dredging Corp. v. Boise Payette Lumber Co.

• Decision Date: 11 February 1943
• Docket Number: 7006
• Citation: 64 Idaho 474,133 P.2d 1017
• Parties: IDAHO GOLD DREDGING CORPORATION, a corporation, Appellant, v. BOISE PAYETTE LUMBER COMPANY, a corporation, and UNITED PACIFIC INSURANCE COMPANY, a corporation, formerly United Pacific Casualty Insurance CO., Respondents
• Court: Idaho Supreme Court

133 P.2d 1017

64 Idaho 474

IDAHO GOLD DREDGING CORPORATION, a corporation, Appellant, v. BOISE PAYETTE LUMBER COMPANY, a corporation, and UNITED PACIFIC INSURANCE COMPANY, a corporation, formerly United Pacific Casualty Insurance CO., Respondents

No. 7006

Supreme Court of Idaho

February 11, 1943

INJUNCTION-BOND-ATTORNEYS' FEE-TRIAL-INSTRUCTIONS-APPEAL AND ERROR.

1. Plaintiff, alleging that services performed by attorneys in securing dissolution of an injunction were necessary and that liability to pay for such services was necessarily incurred could not complain of instruction requiring jury to find that fees which plaintiff claimed it had paid its attorneys were necessarily incurred to authorize recovery on injunction bond for attorneys' fees paid in suit to enjoin collection of judgment.

2. In action on injunction bond to recover attorneys' fees paid in suit to enjoin collection of judgment, obtained under written contract for contingent attorneys' fees instructions submitting theories that a controversy arose between plaintiff and his attorneys, and that the written contract was amended and an oral agreement was made for additional fees for services to be rendered in the injunction suit, and that no oral agreement was made in good faith for the additional fees were proper under the pleadings and evidence.

3. Trial judge must instruct jury upon every reasonable theory of either party finding support in the pleadings and evidence, and should instruct upon respondents' as well as appellant's theories where appropriate instructions are presented.

4. A verdict would not be disturbed if it was supported by substantial and competent evidence.

5. In action on injunction bond to recover attorneys' fees allegedly paid in suit to enjoin collection of judgment obtained under written contract for contingent attorneys' fees, whether plaintiff paid its attorneys only amount due under written contract, whether an oral agreement was made under which plaintiff agreed to pay its attorneys additional fees for services to be rendered in injunction suit to settle a controversy between plaintiff and its attorneys, and whether liability for such services was necessarily incurred, were for jury.

Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for the County of Ada. Honorable Charles E. Winstead, Judge.

Action on injunction bond by the Idaho Gold Dredging Corporation against the Boise Payette Lumber Company and United Pacific Insurance Company, a corporation, formerly United Pacific Casualty Insurance Company. From a judgment in favor of the lumber and insurance companies, the Dredging Corporation appeals. Affirmed.

Judgment affirmed. Costs awarded to respondents.

W. A Johnson for appellant.

When the case has been submitted on erroneous instructions which operate to the prejudice of the complaining party, the judgment will be reversed. (5 C. J. S. Appeal and Error, para. 1763, p. 1102, citing Abercrombie v. Stoddard, 39 Idaho 146, 288 P. 232, in pocket part Call v. City of Burley, 57 Idaho 58, 62 P.2d; Stearns v. Graves, 62 Idaho 312, 111 P.2d 882; Idaho Mercantile Co. v. Kalanquin, 8 Idaho 101, 66 P. 933; Gard v. Thompson, 21 Idaho 485, 132 P. 497.)

The giving of conflicting and contradictory instructions upon a material question to be considered by the jury is error, and ground for reversal. (Holt v. Spokane & Palouse Ry. Co., 3 Idaho 703, 35 P. 39; Portneuf-Marsh Valley, Etc. Co. v. Portneuf I. Co., 19 Idaho 483, 114 P. 19; Axtell v. Northern Pacific Railway Co., 9 Idaho 392, 74 P. 1075; Detroit Fire and Marine Ins. Co. v. Sargent, 42 Idaho 369, 246 P. 311; 5 C. J. S. para. 1763, p. 1092, note 45.)

A gratuity is something freely given without recompense, and anything given in settlement of a liability concerning which the facts show there was some dispute is not a gratuity. (Webster's New International Dictionary, 2nd Ed.; McMullen v. Coleman, Tex. Civ. App., 135 S.W.2d 776; Evans v. Berry, 262 N.Y. 61, 186 N.E. 203, 206, 89 A. L. R. 387; Idaho Gold Dredging Corp. v. Boise Payette Lumber Company, 155 P.2d 401, 408, and authorities cited.)

Richards & Haga for respondents.

Where a party seeks to recover on an injunction bond for attorney's fees in the injunction suit, he can not recover unless such fees were necessarily incurred; and such fees were not necessarily incurred unless the party was obligated to pay them. One can not recover from a surety on an injunction bond what he pays out as gifts or gratuities to his attorneys. (Sec. 6-405, I. C. A.; Miller v. Donovan, 13 Idaho 735, 92 P. 992; Savic v. Kramlich, 52 Idaho 156, 12 P.2d 260; Independent School Dist. No. 6 v. Mittry, 39 Idaho 282, 226 P. 1076; Beekman v. Van Dolsen, 24 N.Y.S. 414, 418, 70 Hun. 288.)

There must be a consideration for any change or modification of any contract, and where a party merely does that which by law or contract he is bound to do, he cannot demand additional payment therefor; and if by change or modification of an existing contract he obtains an additional promise from the other party it is nudum pactum and unenforceable because a promise to do that which one is already bound to do is not sufficient consideration to support such change or modification. (Dashnea v. Panhandle Lumber Co., 57 Idaho 232, 64 P.2d 390; Marshall v. Dossett (Ark.), 20 S.W. 810; Laybourne v. Bray (Tex.), 190 S.W. 1159.)

HOLDEN, C.J. Givens and Dunlap, JJ., and Buckner and Porter, D.JJ., concur.

OPINION

HOLDEN, C.J.

This is an action on an injunction bond prosecuted by the Idaho Gold Dredging Corporation (hereinafter called the mining company) against the Boise Payette Lumber Company and the United Pacific Insurance Company, a corporation, formerly United Pacific Casualty Insurance Company, to recover damages in the form of attorney fees alleged to have been necessarily incurred and paid out in procuring the dissolution of an injunction.

This is the third appeal of this case to this court (Idaho Gold Dredging Corporation v. Boise Payette Lumber Company et al, 60 Idaho 127, 90 P.2d 688; same, 62 Idaho 683, 115 P.2d 401, wherein a very complete statement of the facts will be found). On the second appeal this court reversed the judgment of nonsuit theretofore entered by the trial court, dismissing the action of the mining company, and remanded the cause for a new trial. The cause was tried commencing November 4, 1941, by the court, sitting with a jury. November 5, 1941, the jury found for respondents and against the mining company. Whereupon judgment was entered on the verdict that the mining company take nothing against respondents, from which judgment the mining company appealed to this court.

An examination of the record discloses there are two questions presented on this appeal: First, did the trial court misdirect the jury? If that question is decided against the contention of the mining company, then; Secondly, is the verdict supported by competent and substantial evidence?

These questions will be discussed in the order stated. The determination of the first question necessitates reference to pertinent pleadings and evidence. In its second amended complaint (paragraph XI), the mining company alleged:

"That by reason and on account of said injunction [referring to an injunction enjoining the collection of a judgment in favor of the mining company and against respondents] the plaintiff has been damaged in the reasonable sum of Five Thousand Dollars ($ 5,000.00) necessarily paid out and expended by the plaintiff as, and for, its necessary and reasonable attorney's fees incurred and sustained by reason of the services of its attorneys necessarily done and performed at the request of the plaintiff, by reason and on account of the said injunction and in securing and maintaining the dissolution of the writ of injunction, from the time of making and filing of said injunction order on March 12, 1935, to and including the final judgment in said injunction proceedings, as aforesaid; * * *."

Defendants and respondents answered as follows:

"These defendants deny generally each and every allegation contained in paragraph XI of said second amended complaint, and deny that plaintiff, Mining Company, incurred any expenses for attorney's fees or otherwise by reason of or because of the said temporary injunction having been issued by this court; but on the contrary these defendants allege the fact to be that whatever expenses the Mining Company incurred for attorney's fees, or otherwise, were incurred for the purpose of avoiding a final judgment or decision in said cause in favor of the Lumber Company, and the issuance of a permanent injunction in said injunction suit."

On the second appeal of the Mining Company to this court, the record and opinion disclose the Mining Company attempted to prove, by parol evidence, that after the injunction suit was commenced by respondents against the Mining Company an oral agreement was made between the Mining Company and its counsel for the payment of attorney fees for services to be rendered in that suit, under which the Mining Company incurred the liability to pay for the services; that numerous questions were propounded to Atkinson, president of the Mining Company, by its counsel, to prove the making of the agreement and that such liability was necessarily incurred; that objections to such questions were sustained.

In remanding the cause for a new trial, on the second appeal, this court held the trial court erred in sustaining respondents' objections, pointing out that:

"If a controversy arose between the attorneys and the mining company as to whether the contingent fee contract obligated the attorneys to perform all necessary services in defending against the injunction...