Thomas v. Scougale

• Decision Date: 07 March 1916
• Docket Number: 12961.
• Citation: Thomas v. Scougale, 90 Wash. 162, 155 P. 847 (Wash. 1916)
• Court: Washington Supreme Court
• Parties: THOMAS v. SCOUGALE et al.

155 P. 847

90 Wash. 162

THOMAS v. SCOUGALE et al.

No. 12961.

Supreme Court of Washington

March 7, 1916

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Jesse Thomas against Frank J. Scougale and others. From a judgment of dismissal, plaintiff appeals. Judgment reversed and cause remanded, with instructions.

Fogg &amp Fogg, of Tacoma, for appellant.

HOLCOMB J.

Frank J. Scougale, one of the respondents and husband of respondent Cora Scougale, on August 9, 1909, employed appellant as attorney and gave to him the following memorandum in writing:

'Tacoma, Wash., Aug. 9, 1909.

'I hereby retain Jesse Thomas as my attorney to commence an action for me and my wife against Dominic Cavalero and Norval McGhie and their wives to establish my interest in the lands and timber in Secs. 20, 29, 19, 30, and 32, Twp. 22 N., R. 2 East, and to realize the value thereof, together with damages for breach of the agreement between me and said Cavalero and McGhie when we entered upon the joint adventure for the acquisition of said lands and timber, which were taken in the name of the Gig Harbor Timber (or Lumber) Co., and authorize him to associate with him Fred S. Fogg, and agree to pay my said attorney for his services twenty-five (25) per cent. of whatever may be realized by suit, settlement or compromise of my claim in and to said property or damages.

'Frank J. Scougale.'

Pursuant to the employment, appellant at once commenced an action for his clients as a marital community for the purposes designated in the employment. Afterwards the action so instituted came before this court on an appeal from an order granting a change of venue, and was reported in State ex rel. Scougale v. Superior Court for Pierce County, 55 Wash. 328, 104 P. 607, 133 Am. St. Rep. 1030. The substance of the cause of action stated in the complaint was there succinctly set forth, and it was determined that on the facts alleged the cause of action was one to establish a trust in real and personal property, and for damages for alleged breach thereof. The cause was transferred to Snohomish county, but it does not appear to have been tried and adjudicated, but was abandoned. Shortly thereafter one Sandberg, to whom Scougale and wife had about a year previously given a mortgage for a large sum, began an action to foreclose this mortgage. The defendants defaulted, and Sandberg took judgment in the foreclosure proceedings for the sum of $13,255.60 principal, interest, attorney's fees, and costs. At the time this suit was commenced, another memorandum was made on the back of the former memorandum between appellant and Scougale, signed by Scougale on May 26, 1910, as follows:

'The within retainer is hereby extended to the foreclosure suit brought by Peter Sandberg a few days ago against myself and wife and Cavalero and McGhie et al. upon the same terms and rate of compensation.'

That suit was permitted to go to judgment by default on the part of defendants Scougale, appellant representing Scougale in transactions had with the mortgagee and his attorneys; and it appears that, previous to the giving of the mortgage, Scougale had borrowed $2,600 from the Pacific National Bank of Tacoma, and Sandberg had gone upon his note with him and a mortgage was given to indemnify Sandberg against loss by reason of this note or any future advancements. During the pendency of the action Sandberg stated to appellant and to Scougale that all he wanted was to be made whole on that note at the bank and saved harmless, that he did not want the property, and that, when he was paid off out of the proceeds received from Cavalero, he had no further interest in the property. There were about six years' accrued interest on the note, and it aggregated $3,936.94. Although an attorney's fee of $1,000 had been allowed in the foreclosure, this was settled with Bates, Peer & Peterson, Sandberg's attorneys, for the sum of $100. These sums, together with $41.30 costs in foreclosure suit, were paid to and received by Bates, Peer & Peterson, attorneys for Sandberg, in satisfaction of his judgment and foreclosure. The interests of Scougale and wife were sold, however, under the foreclosure on January 14, 1911, and bid in by Sandberg for the total amount of the judgment and costs, and afterwards Sandberg assigned his certificate of sale, issued to him by the sheriff of Pierce county, to defendant Schliemann, which appellant says he believes was at the request of Scougale. Schliemann held his certificate of sale during the period of redemption, and on March 21, 1914, the sheriff of Pierce county made, executed, and delivered his sheriff's deed to Schliemann for all the right, title, and interest of the Scougales in and to the premises.

After the adjudication in the foreclosure suit, Sandberg filed a suit against Scougale, Cavalero, and McGhie, and their wives, for an accounting and winding up of the Gig Harbor venture, and a division of the property or its proceeds. Appellant's contract of retainer was extended to this action upon the same terms, and appellant on behalf of Scougale and wife filed an answer and cross-complaint setting up their one-third interest in the land and timber not covered, as well as that covered, by the Sandberg mortgage. Sandberg's complaint and Scougale's cross-complaint covered substantially the same field as Scougale's first action hereinbefore referred to. The case was tried in Snohomish county, and Sandberg was represented by Messrs. Bates, Peer & Peterson. No effort was made to segregate the interests of Sandberg and Scougale in that action; their combined interests being referred to as 'the Scougale interest' or 'the Scougale third,' and they prosecuted a joint appeal from the judgment of the superior court to this court ( Sandberg v. Scougale, 75 Wash. 313, 134 P. 1051), and obtained a somewhat more favorable judgment. When the remittitur went down in that case, appellant and Mr. Peer went to Everett, and in conjunction with Mr. Coleman, one of the attorneys for Cavalero, prepared a final decree. Pending the appeal, Cavalero had sold the logging equipment, logs, and piles, and had received a large sum of money subsequent to the time the original decree was entered, and this was taken into account. The decree after appeal as prepared and agreed to by the attorneys awarded to Sandberg and Scougale one-third of the net funds in Cavalero's hands, after being reimbursed for advancing Scougale's third of the original cost of land and timber, with legal interest thereon, one-third of about $3,000 in bills receivable which were then of doubtful value and of which nothing has been collected, and one-third of the 360 acres of logged-off land. Appellant and the attorneys for Sandberg received from Cavalero the sum of $5,644.45 in cash. With this sum they paid Scougale's obligations to Sandberg on account of the note to the bank with the six years' interest and the court costs and attorney's fees which Sandberg actually paid out in the foreclosure suit and in the suit for accounting, which took all of the above sum of cash except $388.55, which appellant received and applied as part payment of his fee. He has received no other compensation. The money above mentioned was received from Cavalero, and the Sandberg claim paid off in December, 1913. This action by appellant is for his stipulated share of the property, under the terms of his employment, recovered for his clients, and to establish a trust to the extent of his interest in the interest recovered for his clients, and to compel a partition of his interests from all the other interests therein.

One of the...