Schmidt v. Curtiss

• Decision Date: 21 February 1913
• Citation: 72 Wash. 211,130 P. 89
• Parties: SCHMIDT et ux. v. CURTISS et al.
• Court: Washington Supreme Court

130 P. 89

72 Wash. 211

SCHMIDT et ux. v. CURTISS et al.

Supreme Court of Washington

February 21, 1913

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Proceeding by John A. J. Schmidt and wife against F. M. Curtiss and A C. Remele for the substitution of other attorneys for defendants in an action brought by plaintiffs against the Cook-Reynolds Company, and to compel defendants to return $800 paid to them. From a judgment authorizing the substitution, but denying plaintiffs' right to a return of the money, they appeal. Affirmed.

R. L Edmiston and R. M. Webster, both of Spokane, for appellants.

Merritt, Oswald & Merritt, of Spokane, for respondents.

MOUNT J.

This proceeding was brought in the lower court by the appellants to substitute attorneys of record, and to require the attorneys previously employed to return to appellants $800 paid to them. The trial court, by consent of the parties, ordered the substitution, but, after a hearing upon the merits, refused to order a return of the money paid as a retainer. This appeal followed.

It appears that the appellants and the respondents, in May, 1912, entered into a written contract as follows: 'This memorandum of agreement, made and entered into between John A. J. Schmidt and the firm of Curtiss & Remele, all parties of Spokane, Washington, witnesseth: Whereas the said John A. J. Schmidt desired to secure the services of Curtiss & Remele in the matter of commencing certain suit against the Cook-Reynolds Company of Lewiston, Montana, to set aside a certain deed to real property situated in Spokane, and to recover the value of a $5,000 real estate mortgage which he has recently assigned to them, all in consideration for a contract on the part of the Cook-Reynolds Company to convey to him certain premises situated in the state of Montana; and whereas, the said John A. J. Schmidt claims that he has been defrauded by said Cook-Reynolds Company out of his premises in Spokane and his mortgage and in addition a $200 cash payment: Now, therefore, in consideration of the services of said Curtiss & Remele, he thereby agrees to and does pay to them the sum of one thousand dollars, the receipt whereof is hereby acknowledged, which sum is accepted by Curtiss & Remele on the understanding that it is a retainer fee in said case, out of which sum they agree to pay the cost of litigation in the superior court, their expenses and...