Schmalz v. Arnwine

• Decision Date: 08 June 1926
• Citation: 118 Or. 300,246 P. 718
• Parties: SCHMALZ v. ARNWINE.
• Court: Oregon Supreme Court

246 P. 718

118 Or. 300

SCHMALZ v. ARNWINE.

Supreme Court of Oregon

June 8, 1926

In Bank.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Action by H. V. Schmalz against Rector Arnwine. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff recovered judgment for $875 for attorney's fees, from which defendant appeals.

Cook & Cook, of Burns, for appellant.

M. A Biggs, of Burns (C. H. Leonard, of Burns, on the brief), for respondent.

BROWN J.

This is a civil action prosecuted by an attorney at law, who is seeking to recover compensation for professional services rendered to the defendant. The case was tried in the circuit court of the state of Oregon for Harney county. It was filed on May 26, 1925. The action was based upon an account for the alleged reasonable value of professional services rendered by the plaintiff to the defendant between August 21, 1921, and October 31, 1924. The complaint alleges the value of such services to be the sum of $1,550, which were rendered by the plaintiff to the defendant in appearing and representing him in a number of criminal and civil actions heard in the courts. It was averred that no part of the $1,550, representing the aggregate sum due on twelve different items of services rendered, had been paid excepting $275, leaving a balance due, owing, and unpaid from the defendant to the plaintiff of $1,275.

In his first answer, the defendant, in answering plaintiff's complaint, put in issue the value of plaintiff's services, and averred payment. In an amended answer he denied value and pleaded settlement, satisfaction, and discharge of any and all claims due or owing from him to plaintiff for such attorney's fees. This action came on for trial, and was heard on October 9 and 10, 1925, when a verdict was returned by a jury in favor of plaintiff in the sum of $825 upon which judgment was entered. Later a motion for a new trial was made and overruled.

The defendant asserts that the lower court committed error growing out of the following facts: The complaint demands judgment for a balance of $1,275; an itemized bill for plaintiff's alleged professional labors served upon the defendant shows that the several items aggregate a sum amounting to $2,167.50, less $275, paid thereon. The difference in the amount alleged to be due, and the sum set forth in the itemized statement is accounted for by, this notation, made a part of the itemized account: "Action has only been brought for the collection of $1,550, we having taken off about 25 per cent. in order to make our charges as reasonable as possible."

It is asserted that the court committed error in allowing the plaintiff to submit evidence tending to establish the full value of each item as charged, and instructing the jury in relation thereto.

It appears that the payment of $275, was not credited to any particular item, but was allowed as payment on the total amount due. To establish an issue made in the trial of the cause, the plaintiff offered testimony, which was admitted over objection and exception, tending to show the value of the plaintiff's services for each item charged in the account. It is difficult to understand how the real value of such services could be established unless witnesses were permitted to testify thereto. The court was careful to instruct the jury that no verdict could be returned for a greater total amount than $1,275, the sum asked for in the complaint, notwithstanding the value thereof. The court did not err in its ruling.

Error is also asserted from the fact that some of the items of service grew out of certain criminal actions, one for the larceny of bacon from a smokehouse, the other for larceny of a still from the courthouse of Harney county. The defendant asserts that in the admission of plaintiff's evidence he was permitted to testify to more than two criminal offenses and that such testimony had a tendency to affect the credibility of the defendant as a witness. In his brief, the defendant says:

"We think that possibly a man charged with two crimes might have a chance to have some reliance placed upon his testimony by the jury, but, after those alleged crimes had been magnified into five, the testimony which might be given by a witness before that jury would receive very little consideration."

The record does not show five cases as asserted by the defendant. The record does show defective indictments and resubmission of the causes therein...