Whitham v. Hilton

• Decision Date: 09 March 1914
• Citation: 78 Wash. 446,139 P. 209
• Court: Washington Supreme Court
• Parties: WHITHAM v. HILTON.

139 P. 209

78 Wash. 446

WHITHAM v. HILTON.

Supreme Court of Washington

March 9, 1914

Department 2. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by John W. Whitham against Howard J. Hilton. Judgment for plaintiff for less than the relief demanded, and both parties appeal. Judgment reversed and cause remanded, with directions to enter a new judgment for plaintiff for $350.

Milan Velikanje, of North Yakima, for appellant.

James Kiefer, of Seattle, for respondent.

PARKER J.

The plaintiff seeks recovery of compensation for services rendered by him for the defendant, alleging the same to be of the reasonable value of $350. A trial before the court without a jury resulted in findings and judgment in favor of the plaintiff for $181.25. From this disposition of the cause, the defendant appealed, and thereafter the plaintiff also appealed.

While the evidence is not free from conflict, we think the controlling facts established thereby may be summarized as follows: The plaintiff is a duly admitted and practicing attorney and counselor at law, residing at Seattle in this state. The defendant is a resident of Denver in the state of Colorado. In March, 1912, school district No. 51 of King county, which lies near the northerly limits of the city of Seattle, commenced, in the superior court for King county, an eminent domain proceeding against the defendant, seeking to acquire a three-acre tract of land owned by him, for school purposes. He was served with process therein, either by publication and mailing, or by delivery of the summons and petition to him personally at Denver, his place of residence. In any event, there came into his possession soon after the commencement of the proceeding a copy of the summons and petition thereon. The commencement of that proceeding seems to have been preceded by an unsuccessful effort of the school board to agree with the defendant upon a price at which he would sell the land to the school district. Thereafter, in July, 1912, the defendant executed and delivered to one Hollowell, a resident of Denver, a power of attorney giving him power to convey the land as attorney in fact for the defendant, and also placed in the hands of Hollowell the summons and petition in the eminent domain proceeding, together with an answer thereto prepared by a Denver attorney, all of which was manifestly for the purpose of having Hollowell proceed to Seattle and dispose of the land to the school district at such price as would be advantageous to the defendant, or to see that the eminent domain proceeding was properly defended in the superior court and a fair award secured therein. Soon thereafter, Hollowell proceeded to Seattle, where he secured the services of a real estate firm to assist him in inducing the school board to purchase the land. After some negotiations, they succeeded in procuring an offer from the school board of $4,500 for the land, it declining to pay any greater sum therefor. Hollowell, deeming this sum insufficient, went to the plaintiff, and employed him, knowing that he was an attorney and not a real estate agent. Hollowell then showed to the plaintiff his power of attorney and placed in the plaintiff's hands the summons and petition in the eminent domain proceeding, together with the answer thereto, which had been previously prepared by a Denver attorney. He requested plaintiff to examine the papers, manifestly for the purpose of having the answer filed in court if found by the plaintiff to be a proper one, and also manifestly for the purpose of having the plaintiff appear as attorney for the defendant in the eminent domain proceeding. The plaintiff then, at the instance of Hollowell, entered upon further negotiations with the school board, looking to a settlement of the matter out of court. After negotiations pending for some two weeks, they ended with the school board agreeing to pay $7,250 for approximately two acres of the land, and the voluntary dismissal of the eminent domain proceeding. It seems plain from the evidence that the plaintiff's persuasion and the fact that he was an attorney and was expected to defend the eminent domain proceeding in the superior court, if brought to trial, caused this advantageous result to the defendant to be brought about. Hollowell executed a deed to the school district for the two acres as attorney in fact for the defendant, received the $7,250 therefor, and left Seattle without offering to pay the plaintiff anything for his services. The trial court's findings are in harmony with this summary of the facts. There are, however, some other facts worthy of notice. Hollowell testified in his deposition that he had no authority to employ plaintiff as attorney in the eminent domain proceedings; that he employed him as a real estate agent only, and agreed to 'divide with him the commission which would come to me [Hollowell] for the making of the sale'; though there is no evidence as to what contract Hollowell had with the defendant as to commission. The defendant testified in his deposition that he had not authorized Hollowell to employ an attorney in the eminent domain proceeding. Two disinterested witnesses testified that, during the negotiations looking to a settlement of the matter out of court, Hollowell had referred to the plaintiff as his attorney in the proceeding. The trial court awarded judgment for $181.25 in favor of the plaintiff, apparently upon the theory that he was employed as a real...