Sessions v. Warwick

• Decision Date: 02 April 1907
• Court: Washington Supreme Court
• Parties: SESSIONS v. WARWICK.

89 P. 482

46 Wash. 165

SESSIONS v. WARWICK.

Supreme Court of Washington

April 2, 1907

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by Joseph Sessions against H. M. Warwick. From a judgment for plaintiff, defendant appeals. Affirmed.

Merritt, Oswald & Merritt, for appellant.

C. H Neal and Joseph Sessions, for respondent.

HADLEY C.J.

This is a suit to recover a balance alleged to be due on a contract for the payment of attorney's fees. The complaint avers that on or about April 1, 1905, the plaintiff and defendant entered into an oral agreement, by the terms of which the defendant employed the plaintiff to appear for him and represent him in a certain lawsuit brought against him in the superior court of Lincoln county by one Morris; that the agreed compensation was $1,000, which was to be in full for all services to be performed by the plaintiff in connection with said lawsuit in the superior court and in any other court to which the cause might be taken; that on the 13th day of October, 1905, the defendant discharged the plaintiff as his attorney in said cause, informed him that he would not permit him to appear further in the suit, and that he would not fulfill his contract to pay plaintiff $1,000 as he had agreed to do; that the plaintiff has at all times been ready able, and willing to fulfill his part of the contract, and would have done so if he had not been prevented by the defendant; that the defendant has paid $300 upon the contract, leaving a balance of $700 still due, for which sum judgment is demanded. The answer alleges that the contract was to pay $1,000 in the event the plaintiff's services should be required in both the superior and supreme courts of the state; that it was understood that said sum was not to be paid unless the plaintiff's services became necessary and unless he should perform the services that would necessarily have to be performed if the case went into both the superior and supreme courts of the state that thereafter the defendant paid $300 as plaintiff's fees for his services rendered in the cause, and that, becoming dissatisfied with the plaintiff's services by reason of statements made by him to the defendant, he discharged him as his attorney in the cause; that said statements were to the effect that the plaintiff procured the employment of N. T. Caton as the attorney for said Morris to bring said suit against this defendant; that this defendant believed from said conversation that said cause was to some extent, if not altogether, instigated by this plaintiff, and that the trial of the cause could not safely be intrusted to this plaintiff as the attorney for this defendant; that the sum of $300, which was paid, is ample and full pay for any services rendered by plaintiff as an attorney in the action. The cause came on for trial before a jury and, at the close of all the testimony, the plaintiff moved that the court take the case from the jury and enter judgment against defendant for $700, on the ground that there was no evidence to go to the jury in support of the defense. The motion was granted. Judgment was accordingly entered, and the defendant has appealed.

It is assigned that the court erred in excluding the testimony of appellant, to the effect that respondent did not go to Oregon to see about witnesses and to take depositions. Objection was made to the testimony on the ground that no such ground of defense was pleaded in the answer. We think the objection was properly sustained on that ground. Moreover, it...