Latourette v. Miller

• Decision Date: 07 October 1913
• Citation: 67 Or. 141,135 P. 327
• Parties: LATOURETTE v. MILLER.
• Court: Oregon Supreme Court

135 P. 327

67 Or. 141

LATOURETTE v. MILLER.

Supreme Court of Oregon

October 7, 1913

Department 1.

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action by H.F. Latourette against Frank L. Miller. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover $750, the remainder of an alleged attorney's fee for services performed by plaintiff's assignors on account of which $100 had been paid. The answer denies that $850 is a just fee, or that any sum in excess of $100, the amount paid, is reasonable. The cause was tried without the intervention of a jury, and from the testimony taken findings of fact and of law were made and based thereon, judgment was given the plaintiff for $700, and the defendant appeals.

F.W Bronn, of Portland (Edward D. Ulrich, of Portland, on the brief), for appellant.

Latourette & Latourette, of Portland, for respondent.

MOORE J.

It is contended by defendant's counsel that errors were committed in admitting, over objection and exception, certain testimony, and that the judgment and findings are excessive. These assignments will be considered in the order mentioned. John R. Latourette, a witness for plaintiff testified in effect that Martha E. Fritz commenced an action in the circuit court of the state of Oregon for Multnomah county against Frank A. Miller, the defendant herein, to recover $50,000 as damage for an alleged breach of promise of marriage; that Miller thereupon retained an attorney, who filed an answer in that action, denying the alleged promise that thereafter, in order to obtain assistant counsel, Miller engaged the witness and H.F. Latourette, partners, as Latourette & Latourette, stipulating in writing to pay them a reasonable sum for their services; that having examined numerous letters received by Miller from Martha E. Fritz, the firm so engaged concluded that he had promised to marry her, but that subsequently she abandoned the contract and released him from his promise, whereupon an amended answer was filed alleging the facts disclosed by the letters; that for about three months the witness and his partner were occupied in carefully examining the law applicable to their theory of the case; that they ascertained what the real character of Martha E. Fritz was, and where she had been for four years immediately prior to the beginning of her action; that they discovered that Miller had paid her about $6,500, and that she had spent three months in Oregon visiting at his home; that the firm of which the witness was a member had made thorough and careful preparation for the trial of the action; that when the case was set down for hearing they were present in court at the time appointed for that purpose; that owing to the congested condition of the docket the cause went over from day to day for five days, during which time the witness and his partner were in attendance upon court; that at the end of that time Miller notified them that the plaintiff in that action would not appear for trial, whereupon they secured a judgment of dismissal against her; that the charge of $850 had been made as a reasonable fee; that the sum of $100 had been paid as retaining fees; and that the firm had assigned the claim for the remainder to the plaintiff, H.F. Latourette.

Miller, as a witness in his own behalf, does not deny any of the statements thus made, and, referring to a period of four or five days during which the members of the firm were engaged in preparing for trial, testified as follows: "They worked longer, but they put the time on the letters." "Q. These letters, comprising from 75 to 100 from the woman to you, which they systematized, and perfected and got ready for trial? A. So I understood."

A.E Clark, a witness for the plaintiff, having testified that he was an attorney in active practice, and had prepared for the trial of actions for breaches of promise of marriage, was interrogated as follows: "Q. Did you hear the statement of John R. Latourette on the stand, as to what service he performed in the case at bar? A. I came in when he was testifying in regard to his being called into the case. Q. I will ask you this question: In a case of this kind, where the attorney is retained by the defendant in a breach of promise case, in which the defendant is sued for $50,000 damages, and after some other attorney has prepared the pleadings, and under the agreement between the defendant and the supposed attorney that a reasonable fee would be paid for such services, and then after the answer is withdrawn and an amended answer is put in, the first having denied any promise to marry, and the second answer having admitted the promise of marriage and pleading a revocation of it afterwards; the examination of some 75 to 100 letters which had passed from plaintiff to defendant, a large number of which showed the direct promise of marriage; and the greater portion of three months' time having been put in by the attorney in ascertaining who the plaintiff was, and what she was and where she was; and it appearing that there had been more or less intimate relations during the period of four years between plaintiff and defendant, and a large portion of that time defendant gave money to plaintiff, in the aggregate of about $6,500, and the letters showing a promise of marriage--now, in the case of the attorney who took that case, and got it ready for trial by amending the pleadings, studying the law of the case, studying the evidence, making a detailed proof of the correspondence, having the case set for trial, appearing for trial, the case went over the first day and then for five days, and, the plaintiff failing to appear at all, judgment was taken in favor of the defendant, and against the plaintiff, what would you consider the reasonable value of such services?" The defendant's counsel objected to the question on the grounds that it did not conform to the evidence adduced, and that no proper foundation had been laid for the introduction of the testimony desired. The objection was overruled and...