Lamb v. Wilson

• Decision Date: 22 October 1902
• Parties: LAMB v. WILSON ET AL.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 496

92 N.W. 167

LAMB

v.WILSON ET AL.

Supreme Court of Nebraska.

Oct. 22, 1902.

Commissioners' opinion. Department No. 1. Appeal from district court, Lancaster county; Frost, Judge.

“Not to be officially reported.”

Action by Walter J. Lamb against Henry H. Wilson and another. From a judgment for defendants and against plaintiff, both parties appeal. Judgment reversed on plaintiff's appeal.Walter J. Lamb, in pro. per.

Henry H. Wilson, Arnott C. Ricketts, and Lowe A. Ricketts, for appellees.

DAY, C.

This action was brought in the district court of Lancaster county by Walter J. Lamb, against Arnott C. Ricketts and H. H. Wilson, for an accounting and settlement of the partnership business of Lamb, Ricketts & Wilson. The issues tendered by the pleadings will sufficiently appear in the further discussion of the case. The trial resulted in a judgment in favor of the defendants and against the plaintiff for $415.66, to review which the plaintiff has brought the case to this court by appeal. The defendants filed a cross appeal, asking a modification of certain findings of the trial court, and praying that the amount of the judgment be increased to correspond with the modified findings prayed for.

The record shows that in November, 1882, the plaintiff and the defendants entered into a partnership, upon equal terms, to engage in the practice of law in the city of Lincoln, Neb., under the firm name of Lamb, Ricketts & Wilson. The partnership so continued until November 28, 1892, when it was dissolved by mutual consent, and apparently with the best of feeling existing between the parties. At the time of the dissolution all the money on hand and all other property belonging to the firm was equally divided between the partners. The firm appears to have been very successful, and at the time of this dissolution had on hand a number of cases pending in the state and federal courts, in some of which fees were contingent upon their successful termination. In some of the cases a large amount of work had been performed; others had been tried and submitted; while in others scarcely anything had been done. At the time of the dissolution, a list of the firm's cases was prepared, and by mutual agreement they were assigned to the different members to close up for the firm; the division being based somewhat on the fact that the case had been particularly in charge of the member to whom it was assigned. There were a few cases pending in the supreme court which had been briefed, argued, and submitted, and most of these were not assigned. It appears that the firm had been employed by Mrs. Houston to prosecute a case in her behalf against one Gran and others, and that a contract had been made with her to prosecute the case to a final determination upon a contingent fee of 37 1/2 per cent. of whatever money might be recovered. At the date of the dissolution this case had been tried in the district court, and from a judgment for $100 in favor of Mrs. Houston she had prosecuted error to the supreme court, where the case had been briefed and submitted, and was pending a decision. There is a conflict in the evidence as to whether this case was assigned to any member of the firm to close up. Mr. Lamb swears that the case was assigned to Mr. Ricketts, while Mr. Ricketts and Mr. Wilson both testify that no assignment of this case was made to any one. It seems that a fair preponderance of the evidence establishes that no assignment of this case was made. After the dissolution of the firm, the Houston Case was reversed in the supreme court, and upon a retrial in the district court, conducted by Ricketts & Wilson, a judgment was recovered for the plaintiff for $5,000, which amount, after considerable further litigation, was collected, and the sum of $2,147.06 was retained under the contract as fees. It also appears that during the existence of the partnership, and from time to time for a considerable period thereafter, settlements were made between the partners as to the amount each had drawn out from the profits of the business, so that on January 1, 1895, each member had drawn from the firm's business an equal amount. During the existence of the firm, the books were kept under the immediate supervision of Mr. Wilson, and after the dissolution the firm's books were turned over to him, and each member of the firm reported to him the fees collected. It is shown that after January 1, 1895, the fees reported to Mr. Wilson, exclusive of the fees in the Houston Case, amounted to $2,128; of this amount $575.40 had been drawn out by Mr. Lamb, to which should be added $22, which, it is conceded, he subsequently received; making Mr. Lamb's total $597.40. Mr. Ricketts drew out $526.50, and Mr. Wilson $526.30. One of the questions presented by the record is whether Ricketts & Wilson are entitled to receive a reasonable compensation for their services in closing up the Houston Case, as against the old firm. As bearing upon this question, the trial court found, as a matter of fact, that the reasonable value of the services performed by Ricketts & Wilson in the Houston Case after it was reversed by the supreme court was $2,000, and that the reasonable value of the services performed by the old firm in said case was $350. Upon these facts the court held “that, out of the $2,147.06 received by the defendants for the prosecution of the claim of Mary J. Houston, $350 thereof belongs to the old firm of Lamb, Ricketts & Wilson, and that said firm of Ricketts & Wilson must account to said old firm for said amount.”

The rule of law is well settled, by the weight of authorities, that neither partner of a dissolved firm is entitled to compensation for services rendered in winding up the partnership affairs unless it is expressly agreed otherwise, or can be fairly implied from the circumstances. It seems, however, that the rule should not be extended beyond the requirement of merely winding up the partnership affairs, by collecting its outstanding claims, paying debts, and distributing the surplus among the members, and that when it appears that time, skill, and labor have been expended by a partner in the continuance of the partnership business, which inure to the general benefit, he ought...