Walsh v. Hoskins

• Decision Date: 26 January 1917
• Docket Number: 3725.
• Citation: 162 P. 960,53 Mont. 198
• Parties: WALSH v. HOSKINS ET AL.
• Court: Montana Supreme Court

162 P. 960

53 Mont. 198

WALSH v. HOSKINS ET AL.

No. 3725.

Supreme Court of Montana

January 26, 1917

Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.

Action by James A. Walsh against Omar Hoskins, Maggie Hoskins, and the Montana Coal & Iron Company.From a judgment for the corporate defendant and an order denying his motion for new trial, plaintiff appeals.Judgment and order reversed, and cause remanded, with directions.

James A. Walsh, of Helena, and W. T. Pigott, of Helena, for appellant.

Goddard & Clark and Johnston & Coleman, all of Bilings, for respondent.

HOLLOWAY J.

This cause was before this court on a former appeal.Walsh v Hoskins,46 Mont. 356, 128 P. 589.We held that the complaint states a cause of action and remanded the case for further proceedings.There was no personal service upon, or appearance by, Omar or Maggie Hoskins.The defendantMontana Coal & Iron Company answered, admitting some of the allegations of the complaint and denying others.The trial resulted in a judgment for the answering defendant, and plaintiff appeals.A statement of the case precedes our former opinion, and need not be repeated here.

To the extent that the facts presented to the lower court were before this court on the former appeal, our former decision became the law of the case binding alike upon this court and the court below.Davenport v. Kleinschmidt,8 Mont 467, 20 P. 823;Neary v. Northern P. Ry. Co.,41 Mont. 480, 110 P. 226.In determining that the complaint states a cause of action, we considered the following allegations: That plaintiff, an attorney at law, was employed by Omar Hoskins to commence an action in the district court against the Montana Coal & Iron Company and others, the character of the action being set forth fully; that he was also employed by Omar and Maggie Hoskins to commence an action against Elijah Smith and the Montana Coal & Iron Company, the character of that action being likewise set forth in detail; that plaintiff commenced both actions and performed a great amount of work in connection therewith; that thereafter a settlement was effected between Omar Hoskins and Maggie Hoskins, on the one part, and P. B. Moss representing Elijah Smith and the Montana Coal & Iron Company, on the other, by the terms of which the shares of stock in the Montana Coal & Iron Company owned by Omar Hoskins were to be sold to Moss, and the two causes of action assigned to him for a consideration named and to be paid according to the settlement agreement; that the necessary documents were prepared by plaintiff to carry the agreements into effect; that these documents, consisting of the settlement agreement, the certificate of stock duly indorsed, and the assignments of the causes of action duly executed, were placed in escrow with the Farmers' & Traders' State Bank of Billings, to be delivered to Moss or his assigns upon the payment of the stipulated price according to the terms of the contract; that thereafter Moss transferred all his interest to Smith and the Montana Coal & Iron Company; that it was agreed between plaintiff and Omar and Maggie Hoskins that for the services rendered by plaintiffhe should receive $3,000; $2,000 was paid, and the balance remains due and unpaid; that the payment of the last installment to Omar and Maggie Hoskins was not made according to agreement, but was made to them directly at Portland, Or., without the knowledge or consent of plaintiff and for the purpose of defeating plaintiff's claim for the balance due him and his lien to secure the same.

The trial court made 11 findings of fact as follows: (1) That plaintiff is an attorney, and that defendantMontana Coal & Iron Company is a corporation; (2) that plaintiff was employed by Omar Hoskins to commence the action against the Montana Coal & Iron Company and others, and did commence such action substantially as alleged in the complaint; (3) that plaintiff was also employed by Omar and Maggie Hoskins to commence the action against Elijah Smith and the Montana Coal & Iron Company as alleged, and that the settlement pleaded was effected; (4) that in the settlement plaintiff represented himself and Omar and Maggie Hoskins, and prepared the documents to be used in the settlement, that $3,000 of the settlement price was paid as alleged, and of this sum plaintiff received $2,000, and that the documents to be used in the settlement were by plaintiff and Moss deposited with the bank in escrow; (5) that plaintiff and Omar and Maggie Hoskins agreed upon plaintiff's compensation as alleged in the complaint; (6) that there is a balance of $1,000, with interest, due plaintiff; (7) that plaintiff has not performed any further services in relation to either action commenced by him for Omar and Maggie Hoskins, and the Montana Coal & Iron Company caused said actions to be dismissed; (8) that Moss transferred his interest in the settlement agreement to Elijah Smith, who transferred to the Montana Coal & Iron Company, that full payment of the settlement price has been made to Omar and Maggie Hoskins, that the last installment was paid by Elijah Smith to Omar and Maggie Hoskins at Portland, Or., and was accepted by them as full performance of the settlement agreement, that prior to the commencement of this action plaintiff failed to notify Moss, Smith or the Montana Coal & Iron Company that he claimed any interest in the settlement agreement or would be affected by its performance or nonperformance or that any portion of his compensation was due or unpaid, and that he failed to notify the bank until April 17, 1911, that said persons and corporations were ignorant of any interest or claim on the part of plaintiff, and plaintiff by his "conduct led them to believe that he had no interest therein"; (9) that for the purpose of carrying into effect the settlement agreement Omar and Maggie Hoskins agreed to the deposit of the documents with the bank, to be delivered to Moss upon the payment of the stipulated price, giving Moss the privilege to deposit the amount of the price in the bank to the credit of Omar and Maggie Hoskins; (10) that, so far as Moss, Smith and the Montana Coal & Iron Company are concerned, the payment of the final installment in Portland was not made to defeat plaintiff's lien or to prevent him from recovering any balance due him; (11)"that no part of the capital stock of the Montana Coal & Iron Company was ever the subject of litigation in the causes of action brought by plaintiff for Omar Hoskins or Maggie Hoskins."

From those facts the court drew these conclusions:

"That the action brought by Maggie Hoskins was for the recovery of money only; that the action commenced by Omar Hoskins was brought for the purpose of canceling certain shares of the corporate stock, certain alleged fictitious indebtedness of the defendant company, and compelling a conveyance

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