Stafford v. Bishop
| Decision Date | 31 March 1925 |
| Docket Number | 5195. |
| Citation | 127 S.E. 501,98 W.Va. 625 |
| Parties | STAFFORD v. BISHOP. |
| Court | West Virginia Supreme Court |
Submitted March 24, 1925.
Syllabus by the Court.
When an attorney engages to perform certain services for a client during an indefinite period, the statute of limitations is inoperative thereon until his employment is terminated.
If during that period, the attorney is retained by the client for a special purpose not within the scope of his regular engagement, the statute begins to run in relation to such special service when it terminates. The statute is not suspended in regard thereto by reason of his continuous employment.
In determining the value of an attorney's services upon a quantum meruit, a jury may take into consideration evidence as to the attor ney's ability, skill experience, diligence, and standing in his profession, as well as the nature and extent of the services performed, the difficulties encountered, the responsibility assumed, the amount involved, the physical and mental labor expended, the results achieved, their benefit to the client, and the usual and customary charges for like services in the same vicinity.
Error to Circuit Court, Mingo County.
Action by J. L. Stafford against Alex Bishop, executor under will of Allen Ferrell, deceased. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside and new trial awarded.
Bronson & Straton, of Williamson, for plaintiff in error.
Charles E. Hogg, of Point Pleasant, for defendant in error.
The plaintiff in this case is an attorney at law, residing at Williamson, W.Va. The defendant is executor under the will of Allen Ferrell, deceased. This will was probated April 17 1907. Clause 7 of the will is as follows:
"It is my desire and request that the disposition and division of my property be paid out and divided under the direction and supervision of my attorney, J. L. Stafford, and in accordance with the strict legal construction of this, my last will and testament; and that all deposits of money and investments that may be made by my hereinafter to be named executor shall be done under the direction of my said atttorney, and not otherwise; which attorney shall be allowed as he may think a reasonable compensation for his services herein, and to be paid by my hereinafter to be named executor when so requested by my said attorney, as well as for services that he has heretofore rendered for which he has not been paid, to wit, for all services rendered from the first day of January, 1907."
This is an action in assumpsit brought to the August rules, 1923, of the circuit court of Mingo county. The plaintiff seeks hereby to recover for his services to the estate. The items of service set forth in the declaration are as follows:
| Services rendered in the probate of the will of the said Allen Ferrell, on the 17th day of April, 1907 | . $ 100 00 |
| Services rendered in the case of Vicie Daniels, administratrix, etc.,against Alex Bishop, executor, and others, in the circuit court of appeals of West Virginia, which suit was instituted and prosecuted in the years 1915 and 1916 | 300 00 |
| Services rendered in the case of J. L. Stafford, Guardian for Wayne Ferrell v. Wayne Ferrell and Others for the sale of certain real estate that belonged to the said Wayne Ferrell, in the circuit court of Mingo county, in the year 1916 | 200 00 |
| Services rendered in adjusting the distribution of the estate of the said Allen Ferrell, upon the renunciation of the will of Allen Ferrel by Vesta Ferrell, his widow, on the 18th day of July, 1907, in which there was a proceeding instituted by the widow, Vesta Ferrell, renouncing the will of Allen Ferrell, which was finally decided on the 18th day of July, 1907 | 200 00 |
| Further services rendered in advising and directing the said executor in the discharge of his official duties as such executor, which includes the investment of funds of the testator, settlement of the executor's accounts, and as to rental of real estate of the testator, making repairs thereon, and in taking care of the estate under his trust as such executor, to wit, the 17th day of April, 1907, to the present, at the rate of $250.00 per annum | 4,000 00 |
| ------- | |
| $4,800 00 |
Upon the trial of the case, a verdict of $4,800 was returned in favor of the plaintiff. The defendant prosecutes error here.
The testimony of the plaintiff is that after he and the defendant examined the will, the defendant remarked to him:
"It was intended by the will from Allen Ferrell that you be associated with me, or that you assist me in looking after the estate, and therefore I employ you for the purpose."
The performance by the plaintiff, and the value of the services set forth in the first four items of his account, were proven as alleged. In support of the fifth item, in his account, to wit, the charge of $250 per annum for 16 years, he testified, in answer to questions by his attorney, which were quite frequently leading, that he advised with Mr. Bishop from time to time as to what was best to be done with the estate. His expressions in regard thereto were:
The plaintiff admitted he had no contract for payment by the year. In regard thereto, he said: "I thought I was entitled to the amount I had charged." He also testified that he had been appointed guardian of Wayne Ferrell, the infant son of Allen Ferrell. He estimated the value of the estate at $50,000. The character of the estate does not appear from the evidence.
Several attorneys gave testimony, as experts, on the value of the services of the plaintiff to the estate. One of them said:
"Assuming the estate is worth $50,000, I think the charge of looking after the estate generally, and looking after especially the interest of this chap, Wayne Ferrell, I think is certainly worth $250 a year."
The testimony of the second:
"Assuming that it was an estate of $25,000 or $50,000, I can hardly conceive of the legal business of such an estate being carried on at a less expense than $250 a year."
A third testified that in view of the size of the estate, the fact that Mr. Stafford was bound to render services for the estate, and was thereby prevented from taking any fee against the estate, and in further consideration of the responsibility of a lawyer in directing and advising an executor, he was also of the opinion that a charge of $250 a year was reasonable.
The fourth attorney testified that he would say:
"If Mr. Stafford was the legal advisor for Mr. Bishop and advised him each year as to the management and how to invest this estate and the handling of the estate, I would say that $250 a year is a reasonable amount."
The defendant testified that there never was any contract between him and the plaintiff as to the plaintiff's services. He did not dispute the reasonableness of the fees included in the first four items of the plaintiff's account. In regard to the charge of $250 a year, he stated that he took up matters relative to the estate only occasionally with Mr. Stafford. According to his recollection, he had not conferred with him in regard thereto since the sale of the Thacker property. The evidence fixed this sale in the year 1916. The defendant also stated that he did not call on Mr. Stafford for any service in investing the funds of the property. He said:
"The most of it was invested in deeds of trust, and I usually made the man who borrowed the money furnish the proper papers without cost to the estate."
He further testified that he never called on the plaintiff for very much advice outside of the matters mentioned in the first four items of the plaintiff's account; that about 10 or 12 years ago, he asked Mr. Stafford twice, according to his recollection, for advice about investing some of the money of the estate in bonds and securities. He had pleaded the statute of limitations to all the items in the plaintiff's account, under the advice of his attorney.
The defendant alleges error in the instruction given by the court to the jury at the instance of the plaintiff, which is as follows:
"The court instructs the jury that if they believe from the evidence in this case that the defendant, Alex Bishop, executor of Allen Ferrell, deceased, secured the legal services and advice of J. L. Stafford, plaintiff, under the will of Allen Ferrell, and there was no fixed time as to when his services should cease, or when payment was to be made therefor, and said services were continuous, the statute of limitations does not begin to run until said Bishop refused to pay for such services."
The theory of the plaintiff is that all of his services to the estate were continuous, and consequently the statute of limitations did not run against any of his claims until the services ceased, or until the defendant refused to pay therefor. The contention of the defendant is that the charges described in each of the first four items in the plaintiff's account were charges made for distinct and separate transactions, and that upon the termination of each separate service the statute of limitations commenced to run in relation thereto. The...
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