Payette v. Willis

• Decision Date: 20 November 1900
• Parties: PAYETTE v. WILLIS.
• Court: Washington Supreme Court

63 P. 254

23 Wash. 299

PAYETTE v. WILLIS.

Supreme Court of Washington

November 20, 1900

Appeal from superior court, Lewis county; A. L. Miller, Judge.

Proceeding by Joseph Payette against J. E. Willis under 2 Ballinger's Ann. Codes & St. § 4769. Judgment for defendant. Plaintiff appeals. Affirmed.

Edward F. Hunter and A. E. Rice, for appellant.

J. E Willis and C. H. Forney, for respondent.

WHITE J.

A motion has been made by the respondent to dismiss this appeal, but, from the view we take of the case, it is unnecessary to pass upon the same. This is in the nature of the special proceeding, and the complaint, stripped of abounding verbiage, amounts to this: That the respondent is a practicing attorney; that prior to the 16th of December, 1896, the appellant employed the respondent to represent him as an attorney in a suit to set aside a deed ( Payette v. Ferrier, 20 Wash. 479, 55 P. 629), and to reinvest title in the land mentioned in the deed in appellant; that prior to the bringing of said action it was agreed between respondent and appellant that, in case appellant was restored to the land in litigation by the courts of the state, appellant was to pay respondent for his services in the matter $100, and all costs and expenses advanced by the respondent in the action; that a trial of the cause, conducted by the respondent, was had in the superior court of Lewis county, a decision rendered against the appellant, and the case appealed to the supreme court; that the supreme court decided the case in favor of the appellant and reversed the lower court; that appellant has paid to respondent the sum of $20 on account of costs; that respondent, since the decision of the supreme court, refuses to proceed further in said action, or to withdraw from the same and allow appellant to employ other counsel, unless the appellant deed to respondent one-half the land in controversy in said action; that appellant has been ready and willing to pay the respondent the amount contracted to be paid when he is restored to the possession of the property in litigation. The prayer of the complaint is that the court find whether or not the appellant is indebted to the respondent, and, if so the amount of such indebtedness; that for such indebtedness, if any be found, the court make such order as the nature of the case demands. The answer denies the payment of the $20 and the contract as to compensation pleaded by the appellant. The services performed are affirmatively pleaded in the answer; also, that $125 was expended by respondent in the expense of litigation, and that $15, and no more, of that sum has been repaid; that a verbal agreement was made between appellant and respondent in March, 1898, this if respondent obtained a favorable decision from the supreme court in said action, reversing the judgment of the lower court, than appellant would convey to respondent an undivided one-half of the land in controversy; and that such favorable decisions was subsequently obtained. The respondent further pleads that the entire tract of land was worth $3,000; that his services in connection with the litigation were of the reasonable value of $1,500; that appellant refuses to execute and deliver a deed for one-half of the land to respondent; that respondent is willing to do all things remaining to be done by an attorney to put appellant in possession of said land, if appellant will make such conveyance. The prayer of the answer is that appellant be adjudged to convey to respondent half of said land, or, if the court shall decide to remove him as attorney, that the court shall determine and fix a fair and reasonable compensation for his services, and not permit any substitution of attorneys until such compensation be paid; that such compensation be fixed so as to be equal to one-half the value of the land, and that respondent be paid also his costs expended for appellant, less said $15. The reply denies the contract set out by the respondent's answer, the value of his services, and most of the other allegations in the answer. The complaint and reply in this case abound in verbiage and immaterial allegations and conclusions of law. The answer, also, is more prolix than necessary. The foregoing, however, is a summary of the pleadings. Both appellant and respondent, without demanding a jury, submitted to a trial of the issues by the court. The court made its findings and conclusions as follows: '(1) That the said J. E. Willis now is, and was during all the time herein mentioned, a regularly admitted and practicing attorney in the courts of this state. (2) That on or about the 1st day of July, 1894, the plaintiff employed defendant to act as attorney for him in a certain matter then pending between the plaintiff and one J. R. Jacobus and others, which said employment resulted in the commencement of an action in the superior court of Lewis county, Washington, wherein Joseph Payette was plaintiff and J. W. Ferrier, administrator of the estate of Jacob Patton and Ida Patton, was defendant, and being No. 1,378, and that subsequently another action between the same parties, affecting the same subject-matter, was instituted by plaintiff, and being No. 1,737; that said matter was litigated in the superior court of Lewis county, and later from thence to the supreme court of the state, and that defendant was employed to attend to said matters in said courts; and that in pursuance of such employment he did attend to said matters in said courts. (3) That no contract or agreement was entered into between plaintiff and defendant fixing or determining the amount of defendant's compensation for such services. (4) That $300 is a reasonable compensation to be allowed defendant as full compensation for said services. (5) That defendant expended in behalf of plaintiff the sum of $75, advanced costs, no part of which has been paid, except the sum of $15. (6) That plaintiff now desires to discharge defendant from further employment as attorney in said matter. As a conclusion of law, the court concludes that plaintiff may discharge defendant from said employment upon payment to him of the sum of $300, attorney's fees, and the sum of $60, as advanced costs.'

The appellant excepted, as follows: 'The plaintiff excepts to the findings of fact and conclusion of law, and the conclusion of the court that the plaintiff may discharge the defendant from said employment upon payment to him of the sum of $300, attorney's fees, and the sum of $60, as advanced costs.' As to the facts found, that exception is too general to constitute the exception provided for by law. Some of the findings are manifestly correct, and a general objection to the whole thereof is clearly insufficient, and this court is precluded from reviewing any questions of fact upon which such findings were based. Hannegan v. Roth, 12 Wash. 65, 40 P. 636; Cook v. Tibbals, 12 Wash. 207, 40 P. 935; Schoonover v. Condon, 12 Wash. 475, 41 P. 195.

The appellant tendered 22 findings of fact, to be substituted for the findings made by the court. The court refused to substitute the findings so tendered, and a general exception to the refusal of the court was noted. Many of the proposed findings were outside of the issues in the case, and were recitals of evidentiary matter, merely, and they were properly rejected by the court. The facts found by the court substantially cover all the issues raised by the pleadings. The appellant offered to show that while the respondent was employed in the case he bought in tax titles on the land in litigation; that the land had been sold for taxes; that the respondent paid the taxes to a certain extent without the knowledge of appellant; and that appellant had to borrow $400 to repay the taxes, penalties, and interest. The court ruled against the offer, and an exception was noted. The respondent claimed that he had a contract with the appellant for an undivided one-half interest in the land. The appellant neglected to pay his taxes. The respondent had a right to purchase the tax titles in order to protect his interest in the land. Aside from this, we are at a loss to understand how the duty of attorney to client was in any manner violated by the attorney's buying in the tax titles. Any one, under the law, had a right to buy the tax titles. The appellant was not required to pay the respondent on redemption any more than he would have had to pay a stranger.

The pleadings and evidence in this case disclose the fact that the relation of client and attorney existed between app...