Palmer v. Parker

• Decision Date: 05 July 1916
• Docket Number: 13378.
• Citation: Palmer v. Parker, 91 Wash. 683, 158 P. 1017 (Wash. 1916)
• Parties: PALMER et al. v. PARKER.
• Court: Washington Supreme Court

158 P. 1017

91 Wash. 683

PALMER et al. v. PARKER.

No. 13378.

Supreme Court of Washington

July 5, 1916

Department 2. Appeal from Superior Court, King County; Kennety Mackintosh, Judge.

Action by E. B. Palmer and another, doing business as Palmer &amp Askren, against George H. Parker. From a judgment for plaintiffs, defendant appeals. Judgment affirmed.

Walter S. Fulton, of Seattle, for appellant.

A. J Falknor, of Seattle, for respondents.

HOLCOMB J.

Respondents in the superior court had verdict and judgment thereon for $3,500, upon four alleged causes of action demanding a total of $4,350, for legal services performed by them for appellant.

Appellant's first complaint of error at the trial is upon the admission of an alleged agreement of settlement entered into in a certain cause conducted for appellant, upon the grounds that the agreement had not been identified, was incompetent and immaterial, and was prejudicial to appellant, and, further that respondent Palmer was permitted, over objection by appellant, to emphasize the statements and recitals in this instrument by reading them in detail and explaining them to the jury. This instrument was, before it went to the jury generally identified by respondent Palmer while testifying as 'the final agreement' made by him, on behalf of appellant, Mr. Murphy, attorney for the wife of appellant, and the attorneys for the adverse parties, in a suit for more than $1,300,000 pending in King county, numbered 81759, and had also been generally identified by attorneys for the adverse parties testifying by deposition in New York City. It was not sued upon directly, and it was not necessary to strictly prove and identify its signatures. It was relevant and material in connection with proofs of the services rendered by respondents, and the objections thereto were therefore not tenable. When properly introduced it was not error to permit it to be read to the jury either by the party himself or his attorney. There were no explanations by the witness which did not refer merely to identification of items mentioned in the stipulation or stating what he, as attorney for appellant, did in carrying out the specific provisions of the stipulation. This was proper, competent, and material.

An affirmative defense alleged by appellant was payment. He averred that he paid the sum of $7,500 to respondents as, and agreed by respondents to be, in full for all legal services theretofore performed, and to include payment in full for all such services thereafter to be and which were rendered by respondents to appellant. This was denied, and the proofs thereon were conflicting. Upon this issue the court instructed:

'If you do not believe by a fair preponderance of the evidence that said $7,500 was intended to and agreed to cover such future services as are referred to in the complaint, then it is your duty to entirely disregard said payment of said $7,500'

--the italicized portion being assailed as a comment on facts. We do not so regard it. This referred to an affirmative plea as to which the burden was upon appellant. If he failed to show by a fair preponderance of the evidence his specific affirmative allegations, that defense was wiped out. That is all the jury were told.

Closely related to this, however, are instructions also attacked by appellant, among them one that the burden of proof was upon appellant to prove that the payment of $7,500 covered the services involved herein. The contention is untenable under the decisions of this state that it is necessary to plead payment affirmatively ( Richards v. Jefferson, 20 Wash. 166, 54 P. 1123; Pickle v. Anderson, 62 Wash 552, 114 P. 177), and the burden of proving payment...