Yount v. Zarbell, 28891.

• Decision Date: 22 March 1943
• Docket Number: 28891.
• Parties: YOUNT et al. v. ZARBELL et ux.
• Court: Washington Supreme Court

135 P.2d 309

17 Wn.2d 278

YOUNT et al. v. ZARBELL et ux.

No. 28891.

Supreme Court of Washington

March 22, 1943

Department 1.

Action by Elinor March Yount, and husband, against Iver H. Zarbell and wife, to recover attorney fees allegedly due under an oral contract of employment wherein defendants filed a cross complaint pleading offset. From a judgment for plaintiffs defendants appeal.

Reversed and remanded with instructions.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

George E. Clarke and Max R. Nicolai, both of Seattle, for appellants.

Copass Hall & Smith, of Seattle, for respondents.

MILLARD Justice.

This action was brought by a marital community against a marital community to recover attorney's fees alleged to be due to plaintiff wife under an oral contract of employment with defendant husband. Defendants denied indebtedness to plaintiffs and by way of cross-complaint pleaded certain offsets. The cause was tried to the court which found in favor of plaintiffs on their complaint and in favor of defendants as to one of the three offsets pleaded in their cross-complaint. From judgment entered in harmony with the findings defendants appealed.

In addition to the contention that the evidence preponderates against the findings, counsel for appellants argue that, in view of the professional misconduct of respondent wife in instituting actions and taking judgments for amount in excess of that due from the debtor and the lending of her name to be used as attorney by appellant husband, who is not an attorney authorized to practice law in this state, respondents are not entitled to recovery in this action. Throughout this opinion to obviate confusion, Mrs. Yount will be entitled respondent and Mr. Zarbell will be designated appellant.

Respondent, who is a member of the Bar of this state, was employed May 18, 1940, by a copartnership consisting of appellant and John Koenig, as receptionist, bookkeeper and office girl. Her additional role was that of attorney to institute and prosecute to judgment actions in connection with the collection agency and discount business in which the copartnership was engaged. She was given free office space, stationery and telephone service and was permitted to privately engage in the practice of law. December 15, 1940, respondent was given notice of termination of her employment.

Noon, the last day of December 1940 respondent demanded from appellant alleged compensation due to her and contemporaneous with that demand served appellant with summons and complaint in this action and garnisheed both of his bank accounts.

The controversy in the case at bar relates to the compensation to be paid to respondent for her services under the terms of the oral contract of employment. She testified that she was to receive a minimum or base salary of eighty dollars monthly and five dollars and ten dollars, respectively, for judgments obtained (in excess of the eighty dollars in any given month) in actions instituted by her in the justice and superior courts. Her version of the salary arrangement is corroborated by the testimony of John Koenig who was appellant's partner from March 18, 1940, until July 31, 1940, when the copartnership was dissolved. Appellant testified that respondent was employed at a flat salary of eighty dollars monthly and that beginning August 1, 1940 (Koenig was no longer a partner) it was agreed that respondent was to receive five dollars and ten dollars, respectively, for each judgment collected (instead of obtained or entered) in all actions instituted by her in justice and superior courts.

The written record kept by respondent, which is in harmony with appellant's written record, sustains appellant's position that respondent was entitled to attorney's fees only if the firm of Zarbell and Koenig from May 18, 1940, to July 31, 1940, and Zarbell, individually, from August 1 1940, to December 30, 1940, actually collected any given account in which respondent obtained a judgment. Those written records disclose that whenever respondent commenced an action for her employers her attorney fee account was credited with five dollars if the action was brought in the justice court or ten dollars if the action was commenced in the superior court. Against those credit items will be found debits when respondent was paid her fees upon collection of the account or when she compromised her fee or charged it off entirely when the account could not be collected. ...