Oxborough v. St. Martin

• Decision Date: 05 November 1926
• Docket Number: No. 25370.,25370.
• Citation: 169 Minn. 72,210 N.W. 854
• Parties: OXBOROUGH v. ST. MARTIN et al. (Cary et al., Interveners).
• Court: Minnesota Supreme Court

210 N.W. 854

169 Minn. 72

OXBOROUGH v. ST. MARTIN et al. (Cary et al., Interveners).

No. 25370.

Supreme Court of Minnesota.

November 5, 1926.

Appeal from District Court, Hennepin County; E. F. Waite, Judge.

Action by M. N. Oxborough against E. S. St. Martin and others, in which Francis C. Cary and others intervened. From an order denying defendant's motion for a new trial, they appeal. Affirmed.

Smith & Callahan, of Minneapolis, for appellants.

Francis C. Cary, Geo. A. Lewis, and George Hoke, all of Minneapolis, for respondent.

HOLT, J.

The appeal is from an order denying defendants' motion for a new trial.

The controversy relates to the attorneys' fees Laybourn & Cary, through whom interveners claim, should recover of defendants. The case on a former appeal is reported in 151 Minn. 514, 187 N. W. 707, 2 A. L. R. 350, where a new trial was granted, for the reason that the agreement for the attorneys' fees, being for part of the land involved in the action, and not in writing, could not be enforced; hence recovery could not be had on the contract, but must rest on quantum meruit. Without objection two questions were submitted to a jury, and the other issues disposed of by the court.

We think the appeal turns upon the decision of the proposition whether it was error to receive in evidence the void agreement for any purpose; the claim of the interveners resting now wholly on quantum meruit. Other errors are presented by appellants in an exceedingly persuasive manner, but the case was carefully tried by the court, and the two issues submitted so clearly that, unless it was error to receive the testimony as to the terms under which the attorneys undertook the employment, the decision should stand.

The authorities are divided. But we think the trend of our decisions is in favor of the admissibility of the agreement as part of the circumstances surrounding the employment and relevant upon the issue of the value of the services. In cases of contracts of employment not enforceable because of the statute of frauds, we have held that so far as performed the contract even measures the recovery. La Du-King Mfg. Co. v. La Du, 36 Minn. 473, 31 N. W. 938; Kriger v. Leppel, 42 Minn. 6, 43 N. W. 484; Spinney v. Hill, 81 Minn. 316, 84 N. W. 116. And in leases void within the same provision of the statute as this it has been held that the rent stipulated measures the recovery where the tenant has held possession. Evans v. Winona Lumb. Co., 30 Minn. 515, 16 N. W. 404; Finch v. Moore, 50 Minn. 116, 52 N. W. 384; Steele v. Anheuser-Busch Brewing Ass'n, 57 Minn. 18, 58 N. W. 685. The case of Confer Bros. v. Currier, 164 Minn. 207, 204 N. W. 929, has some bearing. There is a verbal difference in the statute of frauds as applied to different subject-matters upon which some courts base a distinction, holding that in the instances where the statute refers to the contract as void it is not admissible for any purposes. We have held that there should be no such distinction. Halloran v. Jacob Schmidt Brewing Co., 137 Minn. 141, 162 N. W. 1082, L. R. A. 1917E, 777. It is not morally wrong to make or keep an oral agreement that falls within the statute of frauds, nor is there any statute which forbids entering such a contract. And it is not perceived why, when the terms of the contract become relevant or material to any issue in a case where no recovery is based upon the contract, it should not be received in evidence. The proposition is well put in Keene on Quasi Contracts, p. 289, where, after stating that in such contract the contract price cannot measure the recovery, it is said:

"It does not follow, however, that the defendant can make no use of the contract. Although the authorities are in conflict, it seems clear, on principle, that while the price named in the contract cannot determine the amount of the plaintiff's recovery, yet, as the contract has stated in terms the valuation put by each party on the service rendered, the contract should be admitted as containing evidence legally relevant on the question of the actual value of the plaintiff's services, and for that part either party should be allowed to use it as an admission against interest. * * * It is submitted that, in the decisions holding that the contract cannot be used for the purposes of proving the value of the plaintiff's services, the fact is lost sight of that one and the same instrument may be used for several purposes, and that an instrument invalid or unenforceable as a contract may be used in evidence, not as a contract, but as an admission against interest, without reference to the fact that the instrument is in terms also a contract."

Suppose the appeal from Judge Fish's order had been determined adversely to defendants, and Laybourn & Cary had sued upon a quantum meruit, should the agreement then have been ruled out that the employment was undertaken with the understanding that no fees were to be received unless the services resulted in a reversal of the order? If so, the statute would be used not as a shield, but as a means of fraud. Among the cases holding evidence of the contract admissible and for the jury's consideration in the manner submitted by the learned trial judge, we cite: Farrow v. Burns, 18 Ala. App. 350, 92 So. 236; Davis v. Webber, 66 Ark. 190, 49 S. W. 822, 45 L. R. A. 196, 74 Am. St. Rep. 81; Clark v. Terry, 25 Conn. 395; Murphy v. DeHaan, 116 Iowa, 61, 89 N. W. 100; Waters v. Cline 121 Ky. 611, 85 S. W. 209, 750, 123 Am. St. Rep. 215 (goes to the extent of holding that the void contract measures the recovery); Ham v. Goodrich, 37 N. H. 186; Emery v. Smith, 46 N. H. 151. The authorities to the contrary are cited in the dissent. Among the strongest of those are the ones from Indiana, and for that reason it is not inappropriate to call attention to this in Shumate v. Farlow, 125 Ind. 359, 25 N. E. 432:

"If such a contract can be looked to or respected for any purpose whatever, it is only to define and measure the rights of the parties so far as it has been voluntarily executed. It may well be that to the extent that either party has derived any advantage under the contract on account of the voluntary part performance of the other, the contract may be referred to in determining and considering the amount of compensation which may be recovered."

There certainly was a voluntary and full performance in the instant case by the attorneys, from which defendants reaped in full the expected advantage. In an action to recover on quantum meruit for an attorney's services, it is always proper and material to consider the value and importance to the client of that to which the services relate. And, when there has been an understanding, not only as to the value and importance of the subject-matter, but also as to the value of the services by consenting to give a certain amount therefor, that fact ought also to be received in evidence as an admission against the client as to what value he placed on the services. Even though it may be said that what a client in distress is forced by circumstances to agree to pay his lawyer is not very convincing measure of value, the argument merely goes to the effect of the proof, and not to the admissibility thereof.

The case of McElroy v. Ludlum, 32 N. J. Eq. 828, is often cited as taking strong ground against the admission of a void contract in an action for quantum meruit. It should be noted that a recovery there depended on a contract that came within the statute. In Murray v. Schuldt, 73 N. J. Law, 489, 63 A. 904, the court after citing with approval this statement by Chief...