Keane v. McFee

• Decision Date: 29 October 1954
• Docket Number: No. 8122,8122
• Citation: 275 P.2d 960,75 Idaho 541
• Parties: F. C. KEANE and Eugene F. McCann, Plaintiffs-Respondents, v. A. F. McFEE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 960

275 P.2d 960

75 Idaho 541

F. C. KEANE and Eugene F. McCann, Plaintiffs-Respondents, v. A. F. McFEE, Defendant-Appellant.

No. 8122.

Supreme Court of Idaho.

Oct. 29, 1954.

Harold S. Purdy and Robert V. Glasby, Coeur d'Alene, for appellant.

James P. Keane, Wallace, for respondents.

GIVENS, Justice.

Respondents sued on an alleged account stated as of March 14, 1951 for $11,603.23 for legal services rendered appellant by respondents from April 1946, evidently to the date of the account; and $300 a month retainer from March 15 to September 15, 1951; the balance for both, on the date of suit November 12, 1951, being $7,482.28; asking for a lien on a check for $9,289.66 made by one Munter payable to respondents and appellant, the claimed proceeds of litigation in the State of Washington transacted by respondents and Munter for appellant, said check being placed by respondents with the clerk of the trial court when suit was filed.

Appellant's answer denied there was an account stated, or that he owed respondents $7,482.28 or any sum in excess of $430.51, which he deposited in court for respondents' acceptance; and as affirmative defense admitted employing respondents as counsel, but denied any agreement as to the value of such services, 'but accepting plaintiffs figures said defendant has paid to said plaintiffs without questioning plaintiffs accounting, the sum of $24,982.75.'

Testimony by respondents and Irene Vermillion, their secretary from May 1, 1944 to December 30, 1950; detailed conferences with appellant, checking of accounts, books records, reductions, concessions and readjustment of the parties' respective claims, thus culminating:

'Q. Handing you (Mr. McCann) Plaintiffs' Exhibit No. 1 (detailed debits and credits with pencil notation thereon of the elimination of $2700.00) for identification, will you state what it is? A. That is a memorandum of the figures--the debits and credits of the account between Keane and McCann and A. F. McFee which was agreed upon at the first conference that I have been discussing.

'Q. Is it--is there any writing on plaintiffs' Exhibit No. 1 that you have heretofore testified to? A. Yes, there is a pencil notation after one of the items checked which had been paid to us by Mr. McFee 10/5/50.

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'Q. At the time that this adjustment was made was there any agreement reached between you, Mr. Keane, and Mr. McFee as to the balance due. A. Yes, there certainly was. The figure that is shown on Plaintiffs' Exhibit No. 1, the last typewritten figure, is so labeled.

'Q. Did Mr. McFee promise to pay this? A. The inducement for our agreeing to take less than the $500.00 a month we felt the services were due, or one of the inducements at least, was that he was to pay it up in a very short period of time.

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'Q. Handing you (Mr. Keane) Plaintiffs' Exhibit No. 1 for identification, could you state what that is? A. That is a statement for services rendered by McCann and myself and other incidental expenses together with certain credits given Mr. McFee. It was made up after--after completion of this discussion, which I think occurred on Sunday March 11th.

'Q. And at whose direction was this typewritten statement made? A. Well, Mrs. Vermillion, who at the time was acting court reporter and was no longer employed by either Mr. McCann or myself, and Mrs. Poska had gone over a number of figures and made a bunch of notations from those figures, and she made up this statement pursuant to her records or subject to her records that she had there in the office and certain corrections or alterations made in it by Mrs. Poska.

'Q. Were you present when this statement was prepared? A. I don't think I was present when it was prepared.

'Q. Could I ask you further--there is certain writings on Plaintiffs' Exhibit No. 1. Could you state whose writing that is? A. That is mine.

'Q. Did Mr. McFee ever receive a copy of Plaintiffs' Exhibit No. 1? A. I gave Mr. McFee a copy or the original, I imagine. I imagine I probably gave him the original--I don't know--of that statement. Some of it was probably on about the 13th or 14th of March.

'Q. Did you see Mr. McFee after that date? A. Yes, I did.

'Q. Where did you see him? A. Saw him in my office again. Mr. McCann was also called over to the office.

'Q. Who called him? A. I did.

'Q. Will you relate what conversation took place at that time? A. There was a complaint on Mr. McFee's part with reference to some nine months that he was originally charged with during the month of '46. He claimed that Mr. Horning had acted and had billed him--I don't know whether he said 'paid him for his services rendered during the year 1946.'

'Q. What took place then? A. Mr. McCann was agreeable again to cutting the nine months in '46 for--always with the proviso that the account be straightened out at once.

'Q. By straightened up * * * A. Paid.

'Q. Did Mr. McFee state that he would pay it? A. Yes, he stated definitely that he would pay it within a matter of thirty or sixty days.

'Q. Did he pay it? A. He did not, save and except credits were made on the account.

'Q. Directing your attention to the 15th day of March, 1951, did you receive any money on this balance that was struck? A. $2000.00 on that * * *

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'A. I say there was $2000.00 paid on it under date of March 15th, 1951.

'Q. Were any notations made by you in regard to the $2700.00 which you deducted from the balance as originally shown? A. If you will show me the statement I will explain those notations to the Judge.

'Q. Plaintiffs' Exhibit No. 1. A. Yes. Now, at that time I wrote upon Mr. McFee's copy of the statement 'Adjustment, April, December, 1946 $2700.00' and then subtracted that amount from the balance of $11,603.26.

'Q. Was that made in the presence of---- A. That was made in the presence of Mr. McFee and his copy was also given to him with that notation in pencil made by me on it.

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'Q. Directing your attention, Mrs. Vermillion to on or about March 11th, 1951, do you recall anything that occurred on that date? A. Yes.

'Q. Would you relate that? * * *

'Q. Would you relate what occurred on that date? A. I was called to the office, which was on Sunday, and I went up to the office in the Gyde-Taylor building. Mr. Keane, Mr. McCann, Mr. McFee, Mrs. Poska and Mr. Emacio were there, and I made up a list of charges and credits in the Keane & McCann account for Mr. McFee and Mr. McFee's account and they checked over the credits at that time.

'Q. Did you render a statement prior to that date? A. No.

'Q. You had not? A. Not that I recall.

'Q. And who went over the credits and debits with you? A. I believe everyone checked over them against their ledger sheets that they had.

'Q. 'They had'? Who do you mean? A. That is Mr. McFee, Mrs. Poska and Mr. Emacio.

'Q. And did you make any notations of that meeting? A. I made some additional credits on the list that I had that we didn't have and also they deducted some things that they had credited against Mr. McCann and Mr. Keane that we didn't have too.

'Q. Handing you Plaintiffs' Exhibit No. 1, will you state what that is? A. That is a statement that was made up a few days after the Sunday listing the charges which were against Mr. McFee and credits which had been paid by Mr. McFee to Mr. Keane and Mr. McCann.

'Q. And who drew this up? A. I typed them.

'Q. You did all the typing--all the typing on there was done by you, is that correct? A. Yes, that is correct.

'Q. And from what source did you obtain the typewritten information that is on Plaintiffs' Exhibit No. 1? A. From work sheets we had in the office and other information Mr. Keane gave me the day that I typed this up.

'Mr. Keane: I offer Plaintiffs' Exhibit No. 1 in evidence.

'Mr. Purdy: We have no objection.

'The Court: It will be admitted.'

There was evidence to the effect appellant made payments on this account from time to time, without objecting to its correctness.

There was extensive cross-examination of respondents as to various phases of the negotiations and other typewritten statements from respondents' and appellant's files of accounts, none of which was shown of claimed to have been agreed upon, evidently presented to impeach Plaintiffs' Exhibit No. 1 or to obfuscate respondents' showing that said Exhibit was the correct and final account stated.

Appellant was not asked and did not categorically, or otherwise, deny the testimony of respondents above set forth, that on March 14, 1951 he accepted and agreed to the account as correct. He was cross-examined as to various legal controversies in which respondents or other attorneys putatively rendered services to him, eliciting no definite monetary charges, debits or credits. Appellant, largely through the testimony of Mrs. Cantrell, his bookkeeper, from her examination of his books and the account as presented in Plaintiffs' Exhibit No. 1 and some 24 canceled checks payable to respondents--one to appellant's Company with a notation thereon 'Cash to F. C. Keane'--and drawn by or on behalf of appellant or his Company, sought to show the account as tendered and claimed to be stated and agreed upon by respondents was incorrect. Mrs. Cantrell thus summarized her examination:

'Q. But it was after March 14th? A. '51, yes.

'Q. Now, based on all of these, did you make a final analysis of the account stated? A. That is it.

'Q. All right. Now what does that show? The information that you used to get that was the account stated? A. (It) Was the statement that Keane & McCann that Keane gave me in his office some time prior to the filing of the complaint.

'Q. Just explain to the Court how you arrived at those figures on there,--what you did?

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'A. I took the statement for services rendered and expenses incurred that Keane & McCann had submitted to me or to Mr. McFee, and set that up. I went through all the records and files--there wasn't any account actually set up for Keane & McCann in Mr. McFee's books...