Snow v. Beard

• Citation: 82 Or. 518,162 P. 258
• Parties: SNOW ET AL. v. BEARD ET AL.
• Decision Date: 16 January 1917
• Court: Supreme Court of Oregon

162 P. 258

82 Or. 518

SNOW ET AL. v. BEARD ET AL.

Supreme Court of Oregon

January 16, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Zera Snow and another against S. Roscoe Beard and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is an action by Zera Snow and Wallace McCamant, partners engaged in the practice of law as Snow & McCamant, against S. Roscoe Beard and Mary B. Gray to recover money. The cause, being at issue, resulted in a verdict and judgment for the plaintiffs in the sum demanded, $2,895.70, with interest from April 20 1914, at the rate of 6 per cent. per annum, and the defendants appeal.

J. N Hart, of Portland (Smith & Smith, of Baker, on the brief) for appellants. C. W. Fulton, of Portland (MacCormac Snow, of Portland, on the brief), for respondents.

MOORE J.

It is maintained by defendants' counsel that an error was committed in denying their request for a directed verdict in their favor, interposed when the case was submitted, on the ground that the plaintiffs violated the terms of the contract sued upon, and for that reason they were not entitled to any compensation for the services which they performed. It appears from a transcript of the evidence that the defendants' uncle, S. M. Beard, died testate in Multnomah county, Or., January 10, 1910, having devised and bequeathed all his property equally to them, their mother, Elizabeth Beard, their brother, A. Edgar Beard, and their sister, Carrie E. Cadwell, subject, however, to special legacies amounting to $1,700 and the expenses of administration. The will designated as executrix Mary B. Gray and as executors A. Edgar Beard and S. Roscoe Beard, who for brevity will hereafter in this opinion be indicated by their middle names respectively. The will was probated in that county, and soon thereafter a controversy arose respecting property formerly owned by the testator, a part of which stood in the name of Edgar, and the legal title to other portions was held by the Beard Fruit Company, a corporation of the state of Washington. The defendants asserted that the testator died seised and possessed of all such property, while Edgar maintained he was the owner of the part which stood in his name; that the Beard Fruit Company was the equitable owner of the portion which it held; and that he was the owner of half the stock of that corporation. In order to have such conflicting rights judicially determined the plaintiffs were employed in September, 1910, by the defendants to litigate their claims to the property last mentioned. Pursuant to such engagement, and on behalf of their clients, the plaintiffs instituted suits, actions, and proceedings in their names as follows: In November, 1910, the county court of Multnomah county ordered Edgar to deliver all papers in his possession belonging to the decedent's estate to Roscoe. No attention was paid to this command, and Edgar was cited to appear for contempt of court, whereupon he complied with the order and was discharged. A mandamus proceeding was instituted against Edgar to compel him to permit the defendants and their counsel to inspect the corporation's books and papers and to make copies thereof. In the spring of 1911 proceedings were instituted to remove Edgar as executor. He also commenced like proceedings to have the defendants removed from their trust. Contempt proceedings were brought against Edgar to compel him to file a report showing what he had done as executor. In the summer of 1911 an action was commenced against Edgar to recover the possession of ten shares of the capital stock of the corporation. In order to prepare for the trial of that cause his deposition was taken by the plaintiffs to be used as evidence. Upon the recovery of such stock trustees of the corporation were elected, who adopted a resolution declaring the Beard Fruit Company at the time of the testator's death held certain real property in trust for him and of which the residuary legatees were the equitable owners. Much of the decedent's property was in Clarke county, Wash., where was appointed an administrator of his estate who was not in sympathy with the defendants. An action was commenced in that county against the corporation and a tenant to recover possession of 46 acres of land alleged to have been owned by Mrs. Gray. A suit in equity resulted in which Edgar alleged that the corporation was the owner of the real property. The judge of the superior court of that county had been counsel for Edgar, and by reason thereof the causes were tried by the judge of the superior court of Cowlitz county, Wash., and it was decreed that Mrs. Gray was the owner of an undivided half of the land and that the corporation owned the other moiety. This is the only case that was finally determined in which the plaintiffs did not obtain for the defendants the entire relief demanded. Edgar placed a mortgage of $5,000 upon 41 acres of land in Multnomah county, the legal title to which it was alleged by the defendants herein be held in trust for the estate. A suit was instituted to cancel that lien, and it having subsequently been ascertained that no consideration for the mortgage existed the suit was dismissed upon stipulation that the lien should be discharged. A suit was also commenced to secure for Mrs. Gray and Roscoe an undivided two-fifths of that land, and one was instituted at Vancouver, Wash., by their mother, Elizabeth Beard, to determine the rights of the residuary legatees to the decedent's property in that state. This cause was set for trial in April, 1913, but was then continued. Of the causes tried in the circuit court of the state of Oregon for Multnomah county the plaintiffs on July 15, 1913, secured in this court final determinations in their favor in the case of Gray v. Beard, 66 Or. 59, 133 P. 791, where it was ruled that Edgar held the legal title to land in that county in trust for his uncle's estate, and that the defendants herein were entitled to an undivided two-fifths of that real property. So, too, in Beard v. Beard, 66 Or. 512, 133 P. 797, 134 P. 1196, it was held that mandamus would lie to compel Edgar, who resided in that county, to deliver to Roscoe, as secretary of the Beard Fruit Company, books and papers of that corporation, whose domicile was in another state. Also in Beard v. Beard, 66 Or. 526, 133 P. 795, it was decided that Roscoe, as executor, was entitled to the possession of ten shares of the capital stock of the corporation, which definite portions were held by Edgar.

The plaintiffs, having obtained these favorable decisions, concluded it was proper to bring about, if possible, a settlement of the remaining controverted questions. For that purpose Mr. McCamant conferred with E. B. Seabrook, an attorney for the adverse party, to whom was submitted tentative terms upon which it was believed a compromise could be effected. The latter having consented to cooperate in an attempt to reconcile the existing controversies, McCamant called upon Mrs. Gray, who approved the scheme. He on July 22, 1913, wrote Roscoe, who was then at Ft. Worden, Wash., stating the proposed terms in substance as follows: (1) Edgar to pay the costs recovered against him; (2) Roscoe and Mrs. Gray to waive any claim to the personal property, consisting of a few promissory notes of doubtful value; (3) they also to forego the right to an accounting with Edgar in respect to the affairs of the Beard Fruit Company, allowing Edgar to retain all moneys secured from that source and then in his possession; (4) the latter to liquidate all unpaid charges of administration upon the decedent's estate in Oregon and Washington, including Roscoe's fee as executor, and to pay whatever sum might be allowed by the county court of Multnomah county for legal services performed, and also embracing $250 which had then been awarded for that purpose; (5) Edgar to pay the specific legacies of $1,700; (6) Roscoe and Mrs. Gray to receive from the other devisees and from the Beard Fruit Company quitclaim deeds of real property valued at $40,750, such estimate to be computed upon what was known as the conservative inventory made by the testator January 1, 1910, the particular tracts to be selected by the adverse party. This list of real property contains what is known as the "selling" price, amounting to $202,050, and a "conservative" estimate, aggregating $128,450. The latter appraisal was, in consequence of the loss of title to some of the land by adverse possession, reduced to $114,350, and by further concessions diminished to $101,875, of which the defendants were to receive a title in fee to real estate valued by their uncle at $40,750. In referring to the proposed settlement Mr. McCamant in his letter to Roscoe of July 22, 1913, says in part:

"While the other side is to have the choice and to give you what they see fit aggregating the figures above named, they really have but little choice in the matter, as I can think of only four schemes by which the property can be divided. I have figured on it with a good deal of care and the allowance to you, if this settlement goes through, will be substantially one or other of the following four schedules of property: (1) River Front, $15,000; Slumann Hill, $1,000; Battle Ground, $8,000; Meadow Glade, $2,000; Washington Street House, $6,000; Broadway House, $6,000; Tabor Heights, $2,000; Orchard Heights, $750. Total, $40,750.00."

Each of the other schedules contained the first three parcels of land so mentioned and other tracts. In his reply of July 26, 1913, Roscoe wrote Mr. McCamant in part as follows:

"After carefully considering your proposition I am constrained to say that I will agree to a settlement on the terms as outlined in your

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