Thompson v. Tonopah Lumber Co.
| Decision Date | 28 May 1914 |
| Docket Number | 1894. |
| Citation | 141 P. 69,37 Nev. 183 |
| Parties | THOMPSON ET AL. v. TONOPAH LUMBER CO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Esmeralda County; Theron Stevens, Judge.
Action by I. S. Thompson and others doing business as Thompson Morehouse & Thompson, against the Tonopah Lumber Company. Judgment for plaintiffs, and defendant appeals. Reversed on condition.
P. E Keeler, of Long Beach, Cal., for appellant.
Thompson Morehouse & Thompson, of Goldfield, for respondents.
This is an action to recover a balance of $6,267.88, claimed to be due for legal services rendered to appellant, Tonopah Lumber Company, between the 1st day of June, 1907, and the 1st day of April, 1908. In the bill of particulars, rendered by respondents on demand, they claimed $3,784.45 for services in 16 mechanic's lien cases, $1,550 for 6 attachment suits and one foreclosure case, and $2,233.43 for legal advice, office work, and making 17 liens between those dates. Indebtedness was denied and payment in full for services rendered alleged by defendant. After an extended trial, findings were filed and judgment rendered by the district court in favor of respondents for $2,544.93, and $296.90 interest on that sum from the 1st day of March, 1908, to the time of judgment. Appellant filed a motion for specific findings as to the nature and value of the services rendered in each of the cases itemized in the bill of particulars, as to whether appellant ever agreed to pay a monthly retainer as demanded in this bill, and as to whether, on a specified date, O. W. Kay was employed by and had authority to bind appellant, as contended by respondents on the trial. This motion was denied, and in this connection it does not appear that appellant drew or submitted to the court any findings or prepared findings for approval or disapproval.
It is urged that the court erred in denying the motion for specific findings on the items of the bill of particulars; in refusing to find when, if at all, appellant agreed to pay respondents a monthly retainer on the terms and conditions of the agreement; in admitting testimony relating to conversations and transactions on February 18 and 19, 1908, with O. W. Kay, who had been in charge of appellant's Goldfield yard, and exhibits based on such conversations; in failing to find whether, on those dates, Kay was the authorized agent of appellant; in admitting expert testimony as to the value of office work and legal advice occupying on an average two hours daily; and in allowing interest prior to the date of judgment. It is also urged that the decision is not supported by and is contrary to the evidence.
On November 3, 1907, the respondents made a proposed schedule of fees, addressed to the Tonopah Lumber Company, which began in this manner:
"In order to settle and determine our charges against your company, we submit the following proposition: The company to pay our firm per month cash, $200, this to cover all services of the firm for all office work, including drawing of mechanics' liens, making of contracts, forms, etc."
Following was a detailed statement of proposed charges for foreclosure suits, based on the size of the claim, and specifying different charges for filing complaint, for settlement before issue joined, and for services after issue joined. The respondents made the following additional schedule of fees:
"Goldfield, Nev., Jan. 10, '08.
Tonopah Lumber Co., Goldfield, Nevada. Gentlemen: At the request of your Mr. O. W. Kay, of this place, we have revised our charges for services rendered you since the first day of June, 1907.
Our retainer fee, to be $200 per month, which shall cover all office work, including adjusting claims or settling suits out of court as well as advising, drawing contracts, making forms, etc.
Suits to Foreclose Liens.
1. On suits not exceeding $250, $25.00 on filing the complaint, and $25.00 on issue joined; for attending trial and entering of judgment, such amount as the court may fix.
2. In suits involving more than $250, and not exceeding $1000, 10% of the amount on filing complaint, and 10% additional on issue joined; for attending the trial and entering judgment, such fee as shall be fixed by the court.
3. Suits above $1,000, 10% of amount upon filing complaint and $100 upon issue joined; for attending trial and entering judgment, such fee as may be allowed by the court.
In paying the amount of fee fixed by the court, it is understood that the amount paid by the corporation on filing complaint and on issue joined is to be deducted and only the balance paid to counsel.
In an attachment or other suit, the same amount shall be allowed as is set forth in paragraphs 1, 2 and 3, except that nothing additional is allowed for trial or judgment.
In all suits on mechanics' liens, the company will recover the full amount of the attorneys' fees, and in all settlements before judgment the corporation has an opportunity to collect in fees more than they are required to pay us. As to the contingent fee, the company will receive $25 for filing each lien to be collected from the party against whom the lien is filed.
It appears that copies of these schedules were delivered or sent to Mr. Kay at Goldfield, and to the Tonopah Lumber Company at Tonopah.
Under date of February 18, 1908, the respondents presented a bill against the company, which Mr. Kay tried to adjust. He objected to charges on six of the lien claims because suits on them had not been started, and they were eliminated in an amended bill presented or dated the following day. At that time he had been superseded as manager for the company at Goldfield, but was under agreement to take charge of the lumber business for the company at Schurz, and he was trying to have these accounts adjusted with Mr. Walker, who had succeeded to the Goldfield management for the respondents.
On behalf of the plaintiffs, lawyers testified that they deemed the services rendered by the plaintiffs to be worth much more than the fees proposed by the schedule. Other lawyers, on behalf of the defendant, testified that they considered the services worth less in various instances than had been estimated by the witnesses for the plaintiffs.
According to testimony of an earlier manager in charge of the Goldfield branch of the Tonopah Lumber Company at the time of the commencement of the services rendered, he understood, from what respondents said several months prior to the submission of the schedules, that they were to charge $25 for drawing each lien, and that they would accept the amounts allowed by the court to be paid by the owner of the property against which the lien was filed for the remainder of their fees. The president and manager testifies that this was reported to and approved by him. If such had been the agreement, which was not found by the court, it would not apply to or control in all of the cases in which charges were made, because the most of the suits brought, owing to settlement or for other reasons, or at the request of the appellant, were not pressed to judgment, so that the respondents...
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