Thayer v. Harbican

• Decision Date: 23 September 1912
• Citation: 70 Wash. 278,126 P. 625
• Parties: THAYER v. HARBICAN.
• Court: Washington Supreme Court

126 P. 625

70 Wash. 278

THAYER v. HARBICAN.

Supreme Court of Washington

September 23, 1912

Department 2. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.

Action by R. A. Thayer against Henry Harbican. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Belden & Losey, of Spokane, for appellant.

Benson Wright, of Spokane, for respondent.

ELLIS J.

This action was brought to recover an attorney's fee upon what the plaintiff claims was the written contract of employment. The defendant admitted employing the plaintiff under a written contract, but set up a different contract from that claimed by the plaintiff. The cause was tried to a jury. A verdict was returned in favor of the defendant. The plaintiff's motion for a new trial was overruled. From a judgment entered upon the verdict, the plaintiff has appealed.

It is admitted that the appellant, an attorney of Colville, Wash was employed by the respondent to foreclose two mortgages aggregating about $6,000, held by the respondent upon certain real estate situated in the town of Newport. The contract which the appellant claims was the real written contract of employment, and which was produced by him at the trial, was typewritten, excepting the date, the name of the appellant the names of the mortgagors, the description of the mortgaged property, the signatures of the parties, and the italicized words in that part of the writing fixing the appellant's compensation on three contingencies, which reads as follows: '(1) In case said action is settled prior to judgment, said first party is to receive fifteen per cent. of amount for which the action is settled. (2) In case of foreclosure and sale of said property, and due confirmation of the sale, said first party is to receive twenty-five per cent of the attorney's fees allowed by the court in said action. (3) In case of foreclosure and sale of the said property, and the second party is required to purchase the same in order to protect his interest, then said first party is to receive twenty per cent. of the attorney's fees allowed by the court in said action. Above provisions as to attorney's fees for services shall apply to all courts.'

It is admitted that it was the intention of both parties to execute the contract of employment in duplicate, so that each might have one of the duplicates. The contract produced by the respondent, and which he claims was the real written contract of employment, was in all respects like that produced by the appellant, save that the words 'of attorney's fees,' which we italicize, appeared in the following clause by interlineation with a pen: '(1) In case said action is settled prior to judgment, said first party is to receive fifteen per cent. of amount of attorney's fees for which the action is settled.'

It is also admitted that when the respondent went from his home in Spokane to Colville to negotiate for the employment of the appellant he took with him the two typewritten forms for contract; but the respondent testified in effect that he had, prior to that time, interlined the words 'of attorney's fees' in one and failed to do so in the other. Both parties testified that the contracts, save these words, were filled out by the appellant in his office in Colville, in the respondent's presence. The appellant testified that the interlined words 'of attorney's fees' were not in either of the contracts when he and the respondent signed them in his office. Both parties admitted their signatures to both contracts. The respondent, when shown the contract produced by the appellant, admitted that it was in the same condition as when he and the appellant signed it, but insisted that the contract which he himself produced was also in the same condition as when he and the appellant signed it. Both admitted the mutual delivery of the papers on the day of their date, October 25, 1910.

The appellant entered upon the employment, filed a complaint for foreclosure of the mortgages, and placed a summons thereon in the hands of the sheriff for service. The mortgagor learning of this made overtures for settlement, and a settlement was arranged through the appellant, whereby the mortgagor paid to the respondent the sum of $6,869.97, including the principal and interest of the notes secured by the mortgages, the taxes and insurance premiums paid or incurred by the mortgagee and interest on these sums, court costs and other expenses, and an attorney's fee of $300. The respondent agreed to this settlement in a letter written to the appellant closing with the following agreement: 'I agree to turn over to Mr. R. L. Rutter of Spokane, Washington, the canceled mortgages and notes sued upon, the abstract to the property, the insurance policy held by me and releases of the mortgages herein sued upon * * * upon M. Rutter paying to me the amount above stated as settlement made by you with Mr. Feidler, and I further agree to pay you the commission as stated in our contract of October 25, 1910, and upon receiving same you are to dismiss te above-entitled cause of action.'

The appellant set up this agreement as confirming the contract of employment which he produced at the trial. The respondent answered that this agreement was coerced by the appellant, in that he threatened to dismiss the foreclosure suit if the respondent did not sign it. Whether this promise was coerced or not, it cannot be construed as a confirmation of the contract, as claimed by the appellant. It does not appear that at that time any question had been raised as to what the contract was. The promise might refer as well to the contract as claimed by the respondent as that claimed by the appellant. It had no probative effect as to what the contract really was.

It must be admitted that the disputed clause, as it appears in the writing produced by the respondent, makes the entire contract more homegeneous and consistent. It makes that clause more in keeping with the two succeeding clauses, since it provides the smallest fee for the least work, and makes it a percentage of the fee recovered, as is the case in the other two contingencies. It cannot be successfully argued that the largest fee would be provided in case of a settlement, because the respondent might not want the land but might prefer the money, since the second contingency provided for, which evidently...