Myers v. Bender

• Citation: 129 P. 330,46 Mont. 497
• Parties: MYERS v. BENDER.
• Decision Date: 20 January 1913
• Court: Montana Supreme Court

129 P. 330

46 Mont. 497

MYERS v. BENDER.

Supreme Court of Montana

January 20, 1913

Appeal from District Court, Custer County; Sydney Sanner, Judge.

Action by George W. Myers against Henry Bender. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Geo. W Farr, of Miles City, for appellant.

Donald Campbell, of Miles City, and Fred H. Hathhorn, of Billings for respondent.

BRANTLY C.J.

Plaintiff brought this action on April 8, 1908, to recover a judgment for services as an attorney and counselor at law, rendered to the defendant in an action in the United States District Court, at Helena, Mont., in which the defendant was plaintiff and the Northern Pacific Railway Company and others were defendants. The purpose of that action was to obtain a decree declaring the railway company a trustee of the title to lands hereinafter described, lying within the limits of the federal grant originally made to the Northern Pacific Railway Company, for the benefit of the defendant herein; he claiming that he had made settlement upon them and filed his declaratory statement prior to the definite location of the line of the railway, and that the patent under which it then held the entire section, which included the lands embraced in his settlement, had been issued to it by the federal authorities in violation of his right as a settler. At the time the action was brought it was verbally agreed that the plaintiff should receive as his compensation $150 in cash and 12 1/2 per cent. of the value of any lands recovered in the action, or to which title should be secured by suit compromise, arbitration, or otherwise. Subsequently the agreement was reduced to writing and signed by the parties. The writing bears date January 16, 1906; the action being then about to be determined by compromise agreement. Omitting formal parts, it reads as follows: "The said G. W. Myers agrees to use due diligence in prosecuting said suit to a final determination in said court or by compromise settlement out of court; and it is agreed and understood by both parties hereto that the said G. W. Myers is to be paid for such legal services by said Henry Bender the sum of $150 cash, and is to be further paid by the said Henry Bender twelve and one-half per cent. of all the land and money recovered either by suit or by compromise in said case. This contract includes all of plaintiff's claims known as D. S. No. 3,621, comprising the west one-half of the southwest one-fourth, and the southeast one-fourth of the southwest one-fourth, and lot four, of section 27, in township 8 north, of range 47 east, containing 133 and 36/100 acres, intending hereby that said G. W. Myers is to be paid for such legal services the said sum of $150, and twelve and one-half per cent. of the value of all the land and money so recovered either by suit, compromise or arbitration or otherwise in any manner whatsoever; and should land other than the above described be obtained or recovered by said suit, compromise or arbitration then the said G. W. Myers is to further receive for such legal services twelve and one-half per cent. of the value of all such land so obtained or recovered, and it is understood and agreed by both parties hereto that the valuation to be placed upon any part of the claim known as D. S. No. 3,621 that may be recovered is not to be less than $75.00 per acre, and further the said Henry Bender agrees to pay all expenses connected with said suit. It is further agreed to and understood that the said $150 is to be paid before the termination of said case, and if not so paid before termination or settlement of said case then to be paid out of any money or land so obtained or recovered at the time of settlement of the said case."

On February 17, 1906, an agreement was reached between Bender and the railway company; its codefendants being its grantees of a part of the lands in controversy, and one of its purposes in defending the action being to protect them as such. By the terms of the compromise Bender agreed to waive his claim to the S. 1/2 of the S.W. 1/4 of section 27 by executing and delivering to the company a quitclaim deed, and to dismiss the action. The railway company on its part agreed to quitclaim to the United States the N.W. 1/4 of the S.W. 1/4 and lot 4 of said section 27, containing 53.36 acres, and to convey to Bender by warranty deed lot 3 and that portion of lot 2 lying south of a line extending east and west across this lot at a distance of 50 rods south from the north line of the section and parallel therewith, and containing 34.02 acres. The railway company also agreed to pay to Bender $2,000 in cash. The purpose of the quitclaim by the railway company to the United States was to enable Bender to secure a patent to the 53.36 acres directly from the United States, under the provisions of the act of Congress approved July 1, 1898 (Act July 1, 1898, c. 546, 30 Stat. 597 [U. S. Comp. St. Supp. 1911, p. 1711]). The agreement was executed, with the result that Bender became vested with title to the 34.02 acres by deed from the railway company, dated June 14, 1906, and to 53.36 acres by homestead patent from the United States, dated December 5, 1907.

The complaint alleges, in substance, that the plaintiff fully performed the services required by the contract, and that they resulted in securing to the defendant title to lands to the extent of 87.38 acres, together with $2,000 in cash; that these lands were at the date of the compromise, and ever since have been, of the value of $75,000; that under the terms of the contract plaintiff became entitled to receive from the defendant the sum of $9,375 in addition to the sum of $150, which he was entitled to receive in any event, or a gross sum of $9,525; and that no part of this has been paid except the sum of $916.50, leaving a balance of $8,609.40, which the defendant has failed and refused to pay, though demand has heretofore been made for payment. Judgment is demanded for this amount, with interest at 8 per cent. per annum from January 12, 1907, the date at which demand was made. The controversy at the trial was as to the value of the lands acquired by the compromise settlement, and hence as to whether plaintiff was entitled to recovery in any amount; the defendant insisting that, inasmuch as title to the 53.36 acres was obtained by patent directly from the United States, they constituted no part of the recovery had in the action, and that the evidence as to them should be excluded. The court held that under the terms of the contract the plaintiff was entitled to 12 1/2 per cent. of the value of all the lands obtained through the services rendered by him in connection with the settlement, whether title was obtained directly from the railway company or not. Evidence was also admitted, over defendant's objection, as to such value at any time subsequent to the date at which the compromise was reached and up to the date of the commencement of the action; and the jury were instructed that in determining the amount, if any, which they should find the plaintiff entitled to recover they should take into consideration the highest reasonable market value of the lands shown by the evidence at any time from the completion by the plaintiff of his services under the contract until the commencement of the action. The jury found for the plaintiff, and awarded him damages in the sum of $2,244. Judgment was entered accordingly. The defendant has appealed from the judgment and...