Idaho Gold Dredging Corporation v. Boise Payette Lumber Company

• Decision Date: 25 March 1941
• Docket Number: 6819
• Citation: 62 Idaho 683,115 P.2d 401
• Parties: IDAHO GOLD DREDGING CORPORATION, a corporation, Appellant and Cross-Respondent, v. BOISE PAYETTE LUMBER COMPANY, a corporation, and UNITED PACIFIC INSURANCE COMPANY, a corporation, formerly UNITED PACIFIC CASUALTY INSURANCE COMPANY, a corporation, Respondents and Cross-Appellants
• Court: Idaho Supreme Court

115 P.2d 401

62 Idaho 683

IDAHO GOLD DREDGING CORPORATION, a corporation, Appellant and Cross-Respondent, v. BOISE PAYETTE LUMBER COMPANY, a corporation, and UNITED PACIFIC INSURANCE COMPANY, a corporation, formerly UNITED PACIFIC CASUALTY INSURANCE COMPANY, a corporation, Respondents and Cross-Appellants

No. 6819

Supreme Court of Idaho

March 25, 1941

Rehearing denied July 10, 1941

EVIDENCE-RECEIPTS-INJUNCTION BONDS-ACTION ON-WRITTEN CONTRACTS-MODIFICATION OF BY ORAL AGREEMENT-ATTORNEYS AT LAW-AUTHORITY TO BIND CLIENT.

1. In action on injunction bond covering costs, damages, and reasonable counsel fees not exceeding $5,000, exclusion of evidence by plaintiff to show that receipt given by plaintiff's attorneys and introduced in evidence by plaintiff for $5,000 in full payment of all "fees and expenses" covered fees alone and not any known expense and that quoted phrase was used to obtain a full release, was error. (I. C. A. sec. 6-405.)

2. A simple receipt is only "prima facie evidence" of the truth of statements recited therein, and parol evidence is admissible to explain or contradict it.

3. Where there was no agreement as to amount of fees to be paid to attorneys who successfully defended injunction proceeding and parties thereafter agreed upon a reasonable fee which was paid, an action to recover the amount so paid could be maintained on the injunction bond. (I. C. A. 6-405.)

4. In action on injunction bond to recover attorneys' fees paid in suit to enjoin collections of judgment, where defendant proved written contract between plaintiff and attorneys providing for contingent fee for services in action resulting in judgment, exclusion of evidence offered by plaintiff, that after institution of injunction suit a new oral agreement was made between plaintiff and attorneys covering fees for services in injunction suit, was error. (I. C. A. sec 6-405.)

5. Parties to a written contract may by subsequent oral agreement modify its terms, or contract further with respect to its subject matter.

6. Where issue on appeal was whether complaint to enjoin collection of judgment for damages to mining properties stated a cause of action, mere unaccepted offer by attorneys for mining company in brief and oral argument to deed the mining property to judgment debtor if judgment debtor thought it could recoup its losses could not be construed as an offer by mining company to convey its claims to lumber company in an effort to convince the Supreme Court that the judgment of the trial court dismissing the injunction suit should be affirmed.

7. In action on injunction bond given in suit to enjoin collection of judgment, a cross-complaint alleging merely that attorneys for judgment creditor in injunction suit had offered on behalf of client to deed judgment creditor's property to judgment debtor if judgment debtor thought that it could thereby recoup its losses was demurrable, since under the statute an attorney can bind his client in an action or proceeding only if the agreement is filed with the clerk or entered upon the minutes of the court. (I. C. A. secs. 3-202, 6-405.)

8. On Petition for Rehearing.-Where Supreme Court granted stay of execution in injunction suit pending application to United States Supreme Court for certiorari upon deposit of bonds to protect adversary against damages and costs, such security was a substitute for injunction bond theretofore given so far as any liability growing out of application for writ of certiorari was concerned, and in action on injunction bond evidence concerning services rendered by attorneys in opposing petition for certiorari was not admissible.

9. Where a controversy arises between attorney and client as to whether contingent fee contract covers certain services, and contract by reason of the controversy is amended, and pursuant thereto client pays attorney for such services which were within scope of injunction bond, client in action on bond may recover a reasonable attorney's fee not exceeding the actual amount paid or limit of bond.

10. Where a modified agreement has been fully executed it will not be disturbed for want of consideration.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A simple receipt is only prima facie evidence of the truth of the statements recited therein, and parol evidence is admissible to explain or contradict it.

II. Where an oral agreement was made between a defendant in a suit for injunction and its attorneys, for their services rendered, or to be rendered in opposition to the granting of the injunction, or to secure a dissolution thereof, and thereafter a reasonable attorneys' fee for such services was agreed on by the attorneys and their client and was paid by the latter, action to recover the amount so paid can be maintained on the injunction bond.

III. Parties to a written contract may, by oral agreement, made subsequent to its execution, modify its terms or further contract with respect to its subject matter.

IV. In this case, the court having finally decided the lumber company was not entitled to injunction, reasonable attorneys' fees, not exceeding $5,000, which appellant paid, or had become liable to pay by reason of it, including compensation for services rendered in opposition to petition for writ of certiorari, are within the meaning of the bond and of the statute requiring it to be given.

V. An attorney has authority to bind his client in an action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise.

Rehearing denied July 10, 1941.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action on injunction bond and cross-complaint for damages. Judgment of nonsuit, from which plaintiff has appealed. Cross-appeal by cross-complainant. Judgment of nonsuit reversed and cross-appeal found to be without merit.

Reversed and remanded. Costs awarded to appellant.

W. A. Johnston, for Appellant and Cross-Respondent.

Attorneys employed in one matter may make a contract for services in other matters, and if it becomes necessary for work not included in the terms of an agreement to be done, if the extra work is done with the assent of the client extra compensation can be recovered. (17 C.J.S. 878, 885, 886; In re Burns, 55 Idaho 190; Moore v. Rochester Weaver Mining Co., 42 Nev. 165, 174 P. 1017, 19 A. L. R. 830; Kidd v. Williams, 132 Ala. 140, 31 So. 458, 56 L. R. A. 879; Re Fitzsimons, 174 N.Y. 15, 66 N.E. 554; McMahan v. Smith, 6 Heisk. (Tenn.) 167.)

Oral evidence is admissible to alter, explain or contradict receipts which are mere prima facie evidence. Stein v. Fogarty, 4 Idaho 702; Barghoorn v. Moore, 6 Idaho 531; Gagnon v. Molden, 15 Idaho 727; Wheeler v. Gilmore Etc., R. R. Co., Ltd., 23 Idaho 479; Berryman v. Dore, 43 Idaho 327.)

Services rendered in the Supreme Court of the United States in defending against an application for issuance of a writ of certiorari, are services rendered on appeal. (Idaho Gold Dredging Corp. v. Boise Payette L. Co., 60 Idaho 127; Miller v. Donovan, 13 Idaho 735, 13 Ann. Cas. 259; 4 C.J.S. 81; Cohens v. Virginia, 6 Wheat. 257, 292.

Richards & Haga, for Respondents and Cross-Appellants.

Where an attorney agrees to enforce a claim and generally to collect on the same for a fee contingent upon and payable out of such collection, he must proceed in all matters until actual collection before he is entitled to such fee; and all legal services of whatsoever nature necessary, convenient or incidental to such collection are services contemplated by such contract and are covered by the fee provided for therein; and such attorney cannot collect, nor is his client obligated or liable for, any fees in addition to the fees so provided by such contract for any services necessory or incidental to effecting the collection of the claim involved. (7 C.J.S., p. 1069, sec. 187; 6 C.J.S., p. 743, sec. 319; In re Prather's Estate (Calif.), 191 P. 521; Miller v. Wing (Calif.), 50 P.2d 470; 5 Am. Jur. 356; Salinger v. Mason, 194 F. (CCA 8) 382; Creason v. Deatherage (Mo.), 30 S.W.2d 1.

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 nulum 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; In re Burns, 55 Idaho 190, 40 P.2d 105; 19 A. L. R. 856, Note II.)

MORGAN, J., HOLDEN, J. Givens, Acting Chief Justice, Holden, J., and Sutphen, D. J., and Sutton, D. J., concurring, MORGAN, J., concurring in part and dissenting in part.

OPINION

MORGAN, J.

This action was commenced by Idaho Gold Dredging Corporation hereafter called the mining company, against Boise Payette Lumber Company, hereafter called the lumber company, and United Pacific Insurance Company, formerly United Pacific Casualty Insurance Company, hereafter called the surety, to recover $ 5,000 alleged to have been paid by the mining company to its attorneys for their services rendered in a suit prosecuted by the lumber company against the mining company, wherein the former sought to enjoin the collection of a judgment against it and in favor of the latter. In the injunction suit an undertaking was given, as required by I. C. A., sec. 6-405, executed by the lumber company and the...