Lathrop v. Hallett

• Citation: 20 Colo.App. 207,77 P. 1095
• Parties: LATHROP v. HALLETT et al.
• Decision Date: 12 September 1904
• Court: Court of Appeals of Colorado

77 P. 1095

20 Colo.App. 207

LATHROP v. HALLETT et al.

Court of Appeals of Colorado

September 12, 1904

Appeal from District Court, City and County of Denver.

Action by Mary F. Lathrop against Moses Hallett, executor and trustee under the will of George W. Clayton, deceased, and the city of Denver, also trustee thereunder. From a judgment dismissing the action, plaintiff appeals. Affirmed.

C.C Brown, for appellant.

Macbeth & May, for appellee Hallett.

H.A Lindsley, for appellee city and county of Denver.

GUNTER, J.

From a judgment for appellees (defendants) is this appeal. The complaint alleges the probating of the will of George W Clayton, deceased, the appointment and qualification of Moses Hallett as the executor thereof, the institution of an action by an heir at law to annul the will, the employment of appellant by said executor to defend the action, her successful defense thereof in his behalf and in behalf of appellee city, the value of the service so rendered, and the refusal and failure to pay therefor. It further alleges that by the said will the residue of the estate of deceased, such residue being of great value, was given to appellees in trust to establish and maintain a college. Judgment is prayed awarding appellant a lien upon the judgment obtained in the action contesting the will, and on the trust fund involved therein, for securing and satisfying the amount due her for legal services in said action, and requiring appellee Hallett, as executor and trustee under said will, and appellee city as trustee thereunder, to pay from said funds the amount so due. The answers of appellees deny the employment of appellant, also that she rendered any service in behalf of them, or either of them. The case was tried to the court, and its findings were: (1) That appellant rendered valuable service in defense of the action contesting the will; (2) that she was not employed to perform such service by appellees, or either of them; (3) that she performed such service under the employment, on his own account, of W.C Kingsley, to assist him in the defense of said action, he having been employed by appellee Hallett to defend the same. Judgment went dismissing the action.

Appellant denies the correctness of findings 2 and 3, which are to the effect that she was not employed by the executor, and insists that while the executor did not employ her directly, nor did he expressly authorize her employment, he did impliedly empower his counsel, Mr Kingsley, to retain her on his (the executor's) account, and that she was so retained. The evidence relied upon to support this contention was that the executor employed Mr. Kingsley to defend the action contesting the will, and that the executor regularly employed him as his counsel. The contention, in effect, is that, the mere retainer of counsel is implied authority to him to employ associate counsel at the expense of his client in the litigation in which he is engaged. Such is not the law. Northern Pacific Railway Co. v. Clarke, 106 F. 794, 45 C.C.A. 635, 637. While the retainer of Mr. Kingsley by the executor to defend the action contesting the will did not preclude him from employing at his own expense appellant to assist him in the defense of the contest, yet such retainer did not authorize him to employ appellant as counsel at the expense of the executor or of the estate. Young v. Crawford, 23 Mo.App. 432; Porter v. Elizalde, 125 Cal. 204, 207, 57 P. 899; Northern P. Ry. Co. v. Clarke, supra.

2. Appellant says that Mr. Kingsley assumed authority in her employment to retain her on account of the executor, and that such employment has since been ratified by the executor. We express no opinion as to whether Mr. Kingsley claimed such authority when employing appellant, because not necessary to this decision. If, however, he did assume such authority in retaining appellant, the evidence does not show that the executor ever ratified such employment. The evidence relied on to prove ratification of the alleged employment tended to show that appellant, to the knowledge of the executor, was assisting Mr. Kingsley in the defense of the contest. The fact that she was so engaged was entirely consistent with the conclusion that she was there as the assistant of, and at the expense of, Mr. Kingsley, and not on account of the executor. Young v. Crawford, supra; Porter v. Elizalde, supra.

A further fact fatal to the contention that the evidence showed ratification of the alleged employment is that the executor never knew of the existence of the facts claimed to show ratification. The evidence was not such that the trial court could reasonably conclude...