Neal v. Drainage Dist. No. 2 of Ada County

• Citation: 248 P. 22,42 Idaho 624
• Parties: B. F. NEAL, Respondent, v. DRAINAGE DISTRICT No. 2 OF THE COUNTY OF ADA IN THE STATE OF IDAHO, Appellant
• Decision Date: 24 June 1926
• Court: Idaho Supreme Court

248 P. 22

42 Idaho 624

B. F. NEAL, Respondent, v. DRAINAGE DISTRICT No. 2 OF THE COUNTY OF ADA IN THE STATE OF IDAHO, Appellant

Supreme Court of Idaho

June 24, 1926

JURY TRIAL-REFUSAL OF JURY TRIAL-WAIVER-ARBITRATION-REVOCATION OF SUBMISSION-ATTORNEY AND CLIENT-CONTRACT FOR SERVICES.

1. Under Const., art. 1, sec. 7, and C. S., secs. 6835, 6837 6865, refusal of jury trial in action to recover attorney fees under contract with drainage district organized under secs. 4493-4555, providing for such compensation for court work as court should designate, is error.

2. Although parties may agree to arbitration, revocation of submission renders it of no effect, and, when suit is brought on claims submitted, rights of parties are to be determined by rules applicable to that proceeding.

3. Waiver of jury trial will not be implied in doubtful cases.

4. Work of preparing assessment-roll and other documents, for drainage district and necessary advice, held to come within attorney's agreement to draw all documents for stipulated salary, precluding recovery of additional compensation.

5. Under attorney's contract to draw legal documents for drainage district for monthly compensation, attorney is not entitled to extra compensation, which was to be paid for court work, for drawing amended or supplemental rolls to comply with rulings of court.

6. Supplemental assessment-roll for drainage district, under C S., sec. 4505, provided for by legislation subsequent to attorney's contract to prepare legal documents for stipulated salary, held to come within such agreement.

7. Under contract to draw legal documents for drainage district with additional compensation for court work, court services in securing approval of roll are to be considered in determining reasonable value of services, although approval is not required by statute.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. M. I. Church, Judge.

Action on contract. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded with instructions. Costs to appellant. Petition for rehearing denied.

Reddoch & Hunter, for Appellant.

The construction placed upon the contract upon which the plaintiff sued by the court, in denying the defendant a jury trial, was in violation of the defendant's constitutional right to such trial, and the statutes of this state. (Sec. 3, art. 1, Const. of Cal. 1849; sec. 7, art. 1, Const. of Cal. 1879; sec. 7, art. 1, Const. of Idaho; C. S., secs. 6835, 6837, 6865; Brown v. Greer, 16 Ariz. 222, 141 P. 843; Smith v. Pollock, 2 Cal. 92; Exline v. Smith, 5 Cal. 112; Biggs v. Lloyd, 70 Cal. 447, 11 P. 831; Swasey v. Adair, 88 Cal. 179, 25 P. 1119; Platt v. Havens, 119 Cal. 244, 51 P. 342; People v. Metropolitan Surety Co., 164 Cal. 174, Ann. Cas. 1914B, 1181, 128 P. 324; Randall v. Kelsey, 7 Idaho 168, 61 P. 515; Johansen v. Looney, 30 Idaho 123, 163 P. 303; Shaw v. Kent, 11 Ind. 80; Chessman v. Hall, 31 Mont. 577, 3 Ann. Cas. 1038, 79 P. 254, 68 L. R. A. 410; Moot v. Moot, 214 N.Y. 204, 108 N.E. 424; Hockoday v. Lawrence, 156 N.C. 319, 72 S.E. 387; Okmulgee Producing etc. Co. v. Wolfe, 88 Okla. 188, 212 P. 415; In re McCormick, 72 Ore. 608, 143 P. 915, 144 P. 425; American Mortgage Co. v. Hutchison, 19 Ore. 334, 24 P. 515; Sale v. Meggett, 25 S.C. 72; Albien v. Smith, 19 S.D. 421, 103 N.W. 655; Lipscombs Admr. v. Condon, 56 W.Va. 416, 107 Am. St. 938, 49 S.E. 392, 67 L. R. A. 670.)

That provision of the contract upon which the plaintiff sued, saying: "And should he have to go into court he shall receive whatever compensation the court designates," amounted to nothing more than making the court a referee or arbitrator, and when the same was revoked or breached, by one of the parties, they were then relegated to their legal rights under the contract. (Mead v. Owen, 83 Vt. 132, 74 A. 1058; Scott v. Scott, 183 Ky. 604, 210 S.W. 175; Key v. Norrod, 124 Tenn. 146, 136 S.W. 991; Paulsen v. Manske, 126 Ill. 72, 9 Am. St. 337, 18 N.E. 275.)

Martin & Martin and B. F. Neal, for Respondent.

Where parties contract that the amount of fees to be paid an attorney for services shall be fixed or allowed by the court, it means a court and not a court and jury, and such contract will be enforced by the courts. (Bank of Enoree v. Yarborough, 120 S.C. 385, 113 S.E. 313; Futoransky v. Pope, 57 Okla. 755, 157 P. 905, L. R. A. 1916F, 548; Connor v. Blodget, 18 Cal.App. 787, 124 P. 733; Elwell v. Fosdick, 134 U.S. 500, 10 S.Ct. 598, 33 L.Ed. 998; Palmer v. Lavers, 218 Mass. 286, 105 N.E. 1000; Kearney v. Case, 12 Wall. (U. S.) 275, 20 L.Ed. 395; Pittsburgh's Petition, 243 Pa. 392, 90 A. 329, 52 L. R. A., N. S., 262, 264; Perego v. Dodge, 163 U.S. 160, 16 S.Ct. 971, 41 L.Ed. 113; Lindstrom v. Hope Lumber Co., 12 Idaho 714, 88 P. 92; Bamberger v. Terry, 103 U.S. 40, 26 L.Ed. 317; Wayne County Supr. v. Kennicott, 103 U.S. 554, 26 L.Ed. 486; Lanahan v. Heaver, 77 Md. 605, 26 A. 866, 20 L. R. A. 759; Hoste v. Dalton, 137 Mich. 522, 100 N.W. 750; In re Ames Farmer Canning Co., 190 Iowa 1259, 179 N.W. 105; Richardson v. Centerville, 137 Iowa 253, 114 N.W. 1071; Jones v. Stoddart, 8 Idaho 210, 67 P. 650; Rinker v. Lauer, 13 Idaho 163, 88 P. 1057; Harshbarger v. Eby, 28 Idaho 753, Ann. Cas. 1917C, 753, 156 P. 619; Sassaman v. Root, 37 Idaho 588, 218 P. 374; Hutson v. Rankin, 36 Idaho 169, 33 A. L. R. 91, 213 P. 345; Porter v. Title Guaranty etc. Co., 17 Idaho 364, 106 P. 299, 27 L. R. A., N. S., 111.)

In addition to the provisions of the statute by which parties to litigation may waive a trial by jury, parties may by contract provide for the waiving of a jury by a provision in the contract that certain matters therein shall be determined by the court. (Bank of Columbia v. Okely, 4 Wheat. (U. S.) 235, 4 L.Ed. 559; 2 Page on Contracts, 2d ed., 1257, sec. 726; Berkovitz v. Arbid & Houlberg, 230 N.Y. 261, 130 N.E. 288; C. S., sec. 6576.)

Where parties to a contract have before any controversy arose in regard thereto, placed a practical construction upon the provisions of such contract, such construction will control and in the interpretation thereof the courts will follow the construction given by the parties. (4 Page on Contracts, 2d ed., sec. 2510--2513; Farrell v. Garfield Min. M. & Smelting Co., 49 Colo. 159, 111 P. 839; Smith v. Cucamonga Water Co., 160 Cal. 611, 117 P. 764; Freet v. American Elec. Supply Co., 257 Ill. 248, 100 N.E. 933; City of New York v. New York City Ry. Co., 193 N.Y. 543, 86 N.E. 565; W. T. Tildon Co. v. Densten Hair Co., 216 Mass. 323, 103 N.E. 916.)

The contract made between the parties to this suit was not an agreement to arbitrate, which is a determination out of court, but just the opposite and provided for a determination of their matters by the court, and is within the provisions of C. S., sec. 6576. (1 Bouvier's Law Dictionary, 15th ed., 174; 1 Words and Phrases, 2 ed., 265; Black's Law Dictionary, 85.)

The work done on the assessment-rolls by respondent prior to the filing thereof in court was not covered by his monthly retainer and the parties to this contract so construed it during the course of his employment and before any controversy arose. (3 Words and Phrases, 2d ed., p. 64; Vaughn v. Junior Order Am. Mechanics, 136 Mo.App. 362, 117 S.W. 115; 19 C. J. 382, 383.)

TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee and Budge, JJ., concur. Givens, J., did not sit and took no part in the opinion.

OPINION

TAYLOR, J.

Plaintiff Neal, respondent herein, brought this action for services alleged rendered as attorney for the appellant district. Plaintiff had acted as attorney in the preliminary matters of organizing the district. This action is for services rendered thereafter, including the matter of procedure of preparing, fixing and levying assessments, and other like services. Plaintiff sets forth the agreement, from the minutes of the board, as follows:

"Upon request of the Board, Hon. B. F. Neal submitted: Will draw all legal documents, furnish the Board with advice from February 9th, 1918, until said Board is ready to take rights- of-way for drain for $ 100 per month, and from that time until the assessment roll is completed and filed a salary of $ 200 per month; then to revert back to $ 100 per month. And should he have to go into court he shall receive whatever compensation the court designates. On motion of Coffin, seconded by Sebern, B. F. Neal's proposal was accepted and he was employed as attorney for Drainage District No. 2, Ada County."

Plaintiff filed a bill of particulars from which it appeared that items Nos. 3, 5 and 6 were for services such as preparation of the original assessment-roll, amendments thereto, and additional assessment-rolls, and hearings in relation to approval and confirmation thereof. Items 1, 2, 4 and 7 involved services not directly in connection with the affairs of the district in the proceeding which was therein entitled and pleaded by the plaintiff as, "In the Matter of Drainage District No. 2 of the County of Ada, State of Idaho," but were for such items as appearances and filing briefs and making arguments as amicus curiae in other litigation, in some of which the district was not directly a party, and in appeals to the supreme court. The defendant demanded a jury trial upon all the issues. The court denied a jury trial as to the items of particulars 3, 5 and 6, holding that by the agreement pleaded, defendant had waived a right to a jury as to those items, but indicated that as to items 1, 2, 4 and 7, defendant would be entitled to a jury trial, either in this or another action. At the close of the evidence as to items 3, 5 and 6, by stipulation without waiving the right of defendant to insist upon a jury trial as to the whole matter, the remaining items were...