Price v. Western Loan & Savings Co.

• Decision Date: 02 January 1909
• Docket Number: 1859
• Court: Utah Supreme Court
• Parties: C. S. PRICE, Respondent, v. WESTERN LOAN AND SAVINGS COMPANY, a Corporation, Appellant

100 P. 677

35 Utah 379

C. S. PRICE, Respondent, v. WESTERN LOAN AND SAVINGS COMPANY, a Corporation, Appellant

No. 1859

Supreme Court of Utah

January 2, 1909

APPEAL from Third District Court, Salt Lake County.--Hon. M. L Ritchie, Judge.

Action to recover attorney's fees. From a judgment for plaintiff, the defendant appealed.

REVERSED.

James Ingebretsen and W. H. King for appellant.

Messrs Edwards & Smith for respondent.

McCARTY C. J. STRAUP, J., and LEWIS, District Judge, concur.

OPINION

McCARTY, C. J.

STATEMENTS OF FACTS.

Plaintiff is an attorney at law, and ever since the year 1897 has been engaged in the active practice of his profession in the state of Utah and in the courts of some adjoining states. The defendant, during all of said time, was a corporation engaged in the business of lending money upon real estate security in this and other states. Its loans were made upon the building and loan association plan. In the early part of the year 1901, defendant employed Price (the plaintiff) as its attorney, and until the month of May, 1904, he continued to act as the attorney for the defendant without any special contract other than a general understanding as to the amount of fees to be charged by Price for particular work. The company, during all that time, paid him $ 10 for each abstract of title he examined in its behalf, and in cases where foreclosure proceedings were instituted out of the state it paid him $ 10 in each case for services performed in forwarding the papers in the case to a nonresident attorney, and for services rendered in defending suits against the company it paid him such reasonable fees as might be arranged and agreed upon in each case. In some cases of foreclosure of mortgages brought by Price in behalf of the company he was paid the amount allowed by the court as attorney's fees, and in some instances he was paid a part only of such fees. During the time he was thus employed he received in fees for services rendered the company approximately $ 150 to $ 200 per month. In May, 1904, P. W. Madsen, president and business manager of the company objected to paying Price fees for his work, on the ground that he was "making too much money and the company too little," and proposed to pay him a salary of $ 100 per month. This offer was accepted by Price, who immediately wrote the company the following letter, which contains the terms of the offer and the conditions upon which the offer was accepted: "Salt Lake City, Utah, May 3, 1904. Western Loan & Savings Company, City--Gentlemen: In pursuance to an understanding had with Mr. P. W. Madsen, president and manager of your company, with reference to the compensation I am to receive from your company for all legal services rendered it whether for the examination of abstracts of title, or for the preparation and trial of foreclosures, permit me to say that I will agree, and do hereby agree, to render all such legal services for $ 100 a month, commencing with the 1st of May, 1904, and to continue so long as my services are as satisfactory as they have been in the past two years. It is understood that my services are not to be dispensed with so long as such services are necessary, without good reason appearing therefor."

This letter was received and terms and conditions therein mentioned agreed to by the company. From that time until May 31st, 1905, a period of about thirteen months, Price and the company complied with the terms of the contract as outlined in the letter, Price performing all services required of him as attorney, and the company paying therefor $ 100 per month. In the latter part of May, 1905, Price was informed by Madsen that the company had decided to dispense with his services and to employ another attorney. Price, however, refused to treat his contract as terminated and stood ready to perform all services of a legal character that might be required of him by the company, and he so informed Madsen. Thereupon Madsen formally discharged Price by sending him a letter, of which the following is a copy: "Salt Lake City, Utah, May 31, 1905. Mr. C. S. Price, City--Dear Sir: This is formally to confirm the verbal notice I gave you on or about the 20th inst. that your services as attorney for the Western Loan & Savings Company would end and terminate on the 31st day of May, 1905, as it has not been entirely satisfactory. Yours truly, P. W. Madsen, President." Price elected to treat the contract as rescinded and commenced this action in quantum meruit for the value of his services from the time the contract in question was entered into until the time he was discharged by the company. Evidence was introduced showing each particular business transaction during said time in which Price performed services for the company and the reasonable value thereof, the sum total of which amounted to $ 2,375. From this sum the court deducted the amount paid Price as salary ($ 1,300) for the thirteen months in which he transacted the legal business of the company for $ 100 per month, leaving a balance of $ 1,075, which sum the court found was due Price from the company, and entered judgment in his favor for that amount. To reverse the judgment defendant has brought the case on appeal to this court.

McCARTY, C. J. (after stating the facts as above).

Long after this case was argued and submitted, respondent filed a motion to dismiss the appeal. One of the grounds assigned is that this court is without jurisdiction to determine the questions involved, except to dismiss the appeal for the reason "that the appeal, as designated in said notice of appeal, is not an appeal from a final judgment, but . . . is an appeal from an order or judgment overruling a motion for a new trial." The record shows that the judgment was rendered September 26th, 1906, and that a motion for a new trial was filed October 2nd, and overruled December 8th, 1906. The notice of appeal (omitting the title) is as follows: "To the above-named defendant, C. S. Price, and to Edwards & Smith, his attorneys: You and each of you will please take notice that the defendant in the above-entitled action hereby appeals to the Supreme Court of the State of Utah from the judgment, and the whole thereof, made, rendered, and entered in favor of the plaintiff and against the defendant in said district court of the Third Judicial District in and for the County of Salt Lake and State of Utah on the 8th day of December, A. D. 1906, at which said time the court denied and overruled the defendant's motion for a new trial theretofore made and filed, and entered judgment as aforesaid for the plaintiff and against the defendant in the sum of $ 1,075, together with interest and costs taxed in the sum of $ 21.10."

Respondent contends that this is an appeal from an order of the court made and entered December 8th, 1906, denying and overruling appellant's motion for a new trial, and not an appeal from the final judgment rendered in the case. Of course, if the appeal is from the order denying and overruling appellant's motion for a new trial, and not from the final judgment, respondent's motion to dismiss must prevail. But is the appeal from an order overruling a motion for a new trial? We think not. While we do not regard the notice of appeal as a model, yet we deem it sufficient to show an appeal from the judgment. It recites that the appeal is taken "from the judgment and the whole thereof made and entered in favor of plaintiff and against the defendant . . . on the 8th day of December, A. D. 1906, . . . in the sum of $ 1,075, together with interest and costs taxed in the sum of $ 21.10." No claim is made that the respondent has been misled or in any wise prejudiced by the statement in the notice of appeal that the judgment appealed from was rendered on the 8th day of December, 1906, instead of September 26th, 1906, the true date thereof. The most that can be said in favor of respondent's position is that the appeal is taken both from an order overruling a motion for a new trial and from a final judgment. Conceding, for the purposes of this appeal, that such is the case, it does not vitiate the appeal. (2 Spelling, New Tr. & App. Pro. 524; White v. Pease, 15 Utah 170, 49 P. 416; Watson v. Mayberry, 15 Utah 265, 49 P. 479; Bear River V. Co. v. Hanley, 15 Utah 506, 50 P. 611; Bacon v. Thornton, 16 Utah 138, 51 P. 153.) Nor was the appeal rendered abortive because of the insertion of a wrong date in the notice as to when the judgment appealed from was rendered; it clearly appearing from the record that the respondent was neither misled nor in any way prejudiced by the mistake. (2 Spelling, New Tr. & App. Pro. 524; Weyl v. Sonoma Valley R. R. Co., 69 Cal. 202, 10 P. 510.) The object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case. If the notice is plain and explicit in this particular and sufficient in all other requisites, it ought not to be declared a nullity. The trend of modern authority is to the effect that statutes giving the right of appeal are to be liberally construed. In Sutherland on Statutory Construction (2d Ed.), sec. 717, it is said: "Statutes giving the right of appeal are liberally construed in furtherance of justice. Such an interpretation as will work a forfeiture of that right is not favored." This same doctrine is announced in 1 Spelling, New Tr. & App. Pro. 534; Elliott, App. Pro. 171; Watson v. Mayberry, supra; Mendenhall v. Elwert [Ore.], 52 P. 22.

The next ground assigned for the dismissal of the appeal is that no undertaking was filed as required by law, for the...