Isham v. Parker

• Decision Date: 26 February 1892
• Citation: Isham v. Parker, 3 Wash. 755, 29 P. 835 (Wash. 1892)
• Parties: ISHAM v. PARKER.
• Court: Washington Supreme Court

29 P. 835

3 Wash. 755

ISHAM v. PARKER.

Supreme Court of Washington

February 26, 1892

Appeal from superior court, Walla Walla county; WILLIAM H. UPTON Judge.

Action by A. E. Isham against H. Parker. Judgment for plaintiff. Defendant appeals. Affirmed on plaintiff remitting a portion of the sum for which he had judgment below.

STILES J., dissenting.

Mitchell, Tanner & Mitchell, for appellant.

Crowley & Sullivan, for respondent.

SCOTT J.

The respondent, who was the plaintiff below, brought this action to recover the amount he claimed to be due him for certain services performed by him as an attorney at law for the appellant. There were three separate causes of action therefor pleaded in his complaint. The first one was founded upon a written contract, which is as follows: "This agreement, made and entered into this the 30th day of December, 1884, by and between Hollon Parker and A. E. Isham, witnesseth that the said Isham hereby agrees to prosecute and conduct, according to his best skill and ability, and with ordinary care and skill as an attorney at law for said Parker, or his legal representatives or assigns, the following suits, commenced in the district court of the first judicial district at Walla Walla city, W. T., and prosecute said cases through the courts of the territory of Washington, and, if required so to do, to take said cases to the supreme court of the United States, and prepare briefs for the argument of said cases, to wit: The cases of Timothy P. Denny vs. Hollon Parker, Hollon Parker vs. George Dacres, Hollon Parker vs. George Dacres, H. P. Isaacs, Alfred Thomas, J. C. Smith, Wm. Kirkman, John Lucas, and James McAuliff, and, if required, to commence and conduct one as aforesaid against Dement Bros., wherein the property known as the 'R. J. Stringer Property' is in controversy; and in consideration of such services the said Parker is to pay the said Isham the sum of five hundred dollars ($500.00) and all his necessary expenses in conducting said business, including traveling expenses and board and lodging while away from home on said business; and in case said cases, or either of them, are taken to the supreme court of the territory or United States by the opposing party, then said Isham is to prepare briefs in answer to the opposing party; and the said Parker is to pay the said Isham the balance due on account rendered May 14th, 1884; and said Isham is to prosecute in the aforesaid district court, if so required, for said Parker, Barney O. Donnald, James McAuliff, Dr. Clow, James O. Donnald, James Lamb, and Demeris in the matter of what is known as the 'Land Jumping Cases of Cash Entries;' and this agreement is intended as a full statement to date. A. E. ISHAM. HOLLON PARKER. Witness: J. F. BOYER." The plaintiff alleged that he had fully complied with this contract on his part, and that his expenses, as provided for therein, amounted to $805, and that the balance on the account rendered May 14, 1884, was $254. In his second cause of action he sought to recover the sum of $2,000 for professional services performed by him for the defendant between June 1, 1884, and June 1, 1888, in other matters not included in the written contract, such as counseling and advising the defendant in relation to his property and business affairs generally, and in drawing contracts and other written instruments, including a will, for him. In his third cause he alleged the defendant was indebted to him in the sum of $1,695 for services in preparing a petition for a writ of mandamus for the supreme court of the United States, and a brief thereon in the case of Denny v. Parker, and for like services in the case of Parker v. Dacres, and for examining and collating and digesting the testimony in the case of Denny v. Parker, and for services in said cases in the supreme court of the territory of Washington, over and in addition to the services performed under and by virtue of said contract in writing in the first cause of action pleaded. He alleged the defendant has not paid such sums of money, or any part thereof, except the sum of $1,083, paid from time to time, leaving due and unpaid the sum of $4,171. The defendant denied the performance of the contract, and denied that said expense account exceeded $250, and he also denied that there was any balance then remaining unpaid upon the said account rendered May 14, 1884, and he denied all the other matters alleged in the complaint, and alleged that whatever services were performed by the plaintiff were performed under the written contract aforesaid, and that he had paid for the same, and the whole thereof. He then set up a counter claim for damages in the sum of $14,200, resulting from the loss of a suit, which he claimed was due to the plaintiff's negligence; and he further pleaded that the plaintiff was indebted to him on certain notes. The plaintiff replied, denying these affirmative matters alleged in the answer. A jury trial was had, which resulted in a judgment for the plaintiff for the sum of $3,187.76 and costs, and the defendant appealed.

The history of the cases described in the contract is contained in the decisions of the supreme court of the territory and state of Washington and of the supreme court of the United States, which were introduced in evidence. At the time of the making of the contract set out in the complaint, the case of Denny v. Parker had already been argued and submitted in the supreme court of the territory of Washington. A change in the court called for a resubmission, and at the July term, 1885, on motion of Denny, appellee, the case was dismissed 2 Wash. T. 360, 7 P. 892. A petition for a rehearing was filed and denied, whereupon a petition for a writ of mandamus was filed in the supreme court of the United States, and on March 21, 1887, the writ was issued, directing the supreme court of the territory to proceed to hear and determine the appeal upon the merits. Ex parte Parker, 120 U.S. 737, 7 S.Ct. 767. Under this order of the supreme court the case was argued, submitted, and decided, and the decision is to be found in 3 Wash. T. 598, 21 P. 386. From this decision an appeal was taken to the supreme court of the United States. After briefs had been prepared, and the case argued and submitted, the supreme court of the territory made an order requiring a brief and transcript made of those portions of the testimony relied upon by the respective parties to be made and printed. The respondent was not allowed to recover extra compensation for any services rendered therein, except those relating to the petition for a rehearing, and the application in the United States supreme court for the writ of mandamus, and for preparing the brief and transcript of testimony under the order of the territorial court. The case of Parker v. Dacres was decided by the supreme court of the territory on the merits, (see 2 Wash. T. 439, 7 P. 893,) appealed to the supreme court of the United States, and there decided on March 5, 1889, (see 130 U.S. 43, 9 S.Ct. 433.) No additional charges are made in this case. The case of Parker v. Dacres was, on motion, dismissed from the supreme court of the territory at the July term, 1884. See 2 Wash. T. 362, 7 P. 862. A petition for a rehearing was filed and denied, whereupon a petition for a writ of mandamus was filed in the supreme court of the United States; and on May 13, 1889, the said court directed the supreme court of the territory to proceed and hear the said cause on the merits, (see 131 U.S. 221, 9 S.Ct. 708;) and afterwards, on March 7, 1890, the supreme court of the state decided the said appeal on the merits, (see 1 Wash. St. 190, 24 P. 192.) No recovery for extra compensation was had in this case, except in relation to the petition for a rehearing and the application for the writ of mandamus. For the other cases mentioned in said contract no claim is made outside the contract price.

The court, over the objections of the defendant, allowed the plaintiff to show the value of the services rendered by him in preparing the petition for a rehearing in the supreme court of the territory of Washington in the case of Denny v Parker, and for clerical work in collating and digesting the testimony in said case; also as to the value of his services in preparing the petition for a rehearing in the case of Parker v. Dacres, and for services in preparing the petitions for writs of mandamus in said cases, and preparing briefs thereon in the supreme court of the United States. In this the defendant claims the court erred. He claims all of said services were required of the plaintiff under his written contract aforesaid. That the contract does not provide in what manner, or for what purpose, he was to take said cases, or any of them, to the supreme court of the United States, but that he agreed, in consideration of the $500, to take said cases there if required, and prepare briefs for their argument. That those cases were taken to the supreme court on petitions for writs of mandamus, instead of by appeal or writ of error, could not make any difference so far as the plaintiff's right to compensation was concerned; and in doing that work he did simply what he had agreed to do in his contract, and was not entitled to receive any additional compensation therefor. That he also agreed in the written contract to prosecute the case of Denny v. Parker to the supreme court of the territory of Washington, and prepare briefs for the argument thereof, and that whatever services he performed in that case were done under and came within what was required of him by the contract, and that the terms of the contract would require him, if he supposed, in the exercise of reasonable care and diligence as an attorney, that he should prepare and file ...