Schirmer v. Nethercutt, 22180.

• Decision Date: 28 May 1930
• Docket Number: 22180.
• Citation: 157 Wash. 172,288 P. 265
• Court: Washington Supreme Court
• Parties: SCHIRMER v. NETHERCUTT.

288 P. 265

157 Wash. 172

SCHIRMER v. NETHERCUTT.

No. 22180.

Supreme Court of Washington

May 28, 1930

Department 2.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by C. E. Schirmer against G. M. Nethercutt. Judgment for plaintiff, and defendant appeals.

Affirmed.

George M. Nethercutt and Neil C. Bardsley, both of Spokane, for appellant.

W. W Zent, of Odessa, and Powell & Herman, of Spokane, for respondent.

HOLCOMB J.

This case is an aftermath of the decision of this court in State ex rel. Schirmer v. Superior Court, 143 Wash 578, 255 P. 960.

This action was brought by respondent to recover damages from appellant, an attorney at law, for breach of duty in permitting respondent to act as a witness to a will in which respondent was named as a beneficiary. Respondent alleged that he employed appellant as an attorney to prepare the will for the grandmother of respondent. The nature of the will, its witnessing, and the effect thereof on respondent as a legatee, who had been intended by the testatrix to receive one-half of the residue of her estate, and of an attempted codicil to that will, are clearly stated in the former decision.

In his complaint herein respondent alleged that on February 28, 1926, for a valuable consideration then paid to appellant he employed appellant as an attorney for the purpose of drawing the last will and testament of Karolina Waigel, grandmother of respondent; that the will was prepared in accordance with the instructions given by Karolina Waigel and respondent; that appellant carelessly and negligently failed and neglected to exercise diligence in permitting respondent, named as a beneficiary in the will, to act as a witness thereto, and as a result of such witnessing signature respondent lost the entire value of the money and property he would have received had appellant had another than respondent witness the execution of the will. Respondent alleged the value of the one-half residuary share of the estate of the testatrix, which he would have received had he not been rendered ineligible to inherit the same under the will, was of the value of $15,000.

A demurrer interposed to the complaint on statutory grounds was overruled and appellant answered. In his answer, after denials, he set up six affirmative defenses: (1) That the action was barred by Rem. Comp. Stat. § 165, not having been brought within two years after the date the alleged cause of action accrued; (2) that appellant was a private and personal attorney for Karolina Waigel and had no contractual relation within respondent and owed no duty to him; (3) that Karolina Waigel and respondent each was advised that respondent could not and would not take thereunder the bequest therein provided for him; (4) that respondent and appellant, prior to the commencement of this action, settled all matters and things alleged in the complaint; (5) that respondent was a student of law in appellant's office, and had been instructed that a subscribing witness to a will could not, under the law, partake of any benefits if named as a beneficiary in the will; that respondent was advised by reason of his being executor of the estate of Karolina Waigel, deceased, that the whole of the estate was appraised and was of the value of not over $13,600, from which should be deducted expenses of administration, funeral expenses, expenses of last illness, and special bequests therin provided; that respondent knew before the death of Karolina Waigel that she had, in effect repudiated him and intended that he should not share in her estate, beyond being remunerated for acting as administrator thereof, because of previous advances made by her to him during her lifetime and refused to make further advances to him; (6) that during the time mentioned in his complaint and for some time prior thereto, respondent acted as agent and employee of Karolina Waigel in handling business transactions, and any acts and things done and performed by respondent in connection with the preparation and execution of her will were so done and performed by him as her agent aforesaid; that respondent also acted for and on behalf of the deceased, handled funds for her, paid to appellant herein from time to time moneys for and on behalf of Karolina Waigel, and was her sole agent in reference to such business transactions.

Respondent replied to the affirmative allegations denying the first, second, and third; denying the fourth as to any release and settlement, and further alleging, affirmatively, that any pretended release or settlement obtained by appellant from respondent had been obtained fraudulently by deceit and misrepresentation practiced by appellant upon respondent; the fifth affirmative defense was admitted to the extent of admitting that respondent entered into a contract with appellant to undertake the study of law under appellant, and also admitted that the appraised valuation of the estate of Karolina Waigel was approximately $13,600, and denied every other allegation therein contained; the sixth affirmative defense was denied, except that respondent admitted that he assisted Karolina Waigel in certain business matters and reaffirmed that respondent, himself, and personally employed appellant as an attorney to prepare and have properly executed the last will and testament of Karolina Waigel, which appellant did cause to be prepared and executed and for which work and services respondent himself paid to appellant them sum of $10.

After the jury was impaneled and the opening statement made by counsel for respondent, appellant moved that no evidence be received on behalf of respondent for the reason that his complaint did not state a cause of action, in that no more than a mere expectancy in the estate of the deceased was shown to exist, the value of which had not been ascertained. The motion was denied. At the close of respondent's case, appellant again moved for a directed verdict in his favor, which motion was denied.

Appellant submitted two special interrogatories to be submitted to the jury by the trial court as follows:

'Was the plaintiff acting as the agent of Karolina Waigel?'

'Was the defendant acting as attorney for Karolina Waigel?'

The submission of these interrogatories was denied by the trial court, to which appellant excepted.

After a verdict and judgment, appellant moved for a judgment non obstante, or for a new trial, submitting affidavits in support thereof. Counter affidavits contradicting the allegations made in the affidavits of appellant were filed by respondent. The motion for judgment non obstante and for a new trial were both denied.

At the trial evidence was introduced by respondent showing that the appraised value of $13,600, as alleged by appellant and admitted by respondent, was increased by independent evidence showing that some of the property had increased in value and that certain property in Montana, which had been appraised at $1, had been converted into a security of the actual value of $3,267. There was thus a net increase in the appraised value of that item alone of $3,266. The total net estate proven by respondent was at least twice the amount of the verdict for $7,400.

Seventeen errors are assigned and urged by appellant.

Respondent in his brief moves the court to strike that part of appellant's abstract headed 'Evidence,' comprising twelve pages of the abstract. There is some merit in this motion, and it has been necessary both for appellant and for this court to refer entirely to the 162 paged statement of facts for an understanding of the facts of the case. But the motion will not be granted for the reason that it is made for the first time in the brief when the cause has been submitted on appeal and that is not the appropriate remedy.

The first error argued is the denial of appellant's motion for judgment on the pleadings.

It is argued that the complaint is one for alleged neglect of duty, but that it is readily disclosed by the reading of the complaint that what respondent seeks to recover is an anticipated loss only, based upon the alleged employment by him of appellant to draw the will; the actual residuary value of the estate not having been finally determined. It is argued, also, that the complaint is defective because it does not allege the date of the death of Karolina Waigel nor that the will pleaded was her last will and testament; nor the probate of her estate, nor sufficient facts upon which the value of her estate could be determined without speculation; nor the settlement and distribution of the estate, and contained only a mere conclusion as to the value of the property.

No authorities are cited to sustain this contention. It is the ordinary practice, however, where a party desires a complaint to be more definite and certain, or desires a bill of particulars, to make a motion to that effect. Appellant made no such motion in the court below.

Whatever the deficiencies in...