Buckles v. Northeast Kansas Telephone Co. , 79 Kan. 34 ( 1908 )

The opinion of the court was delivered by

Bens on, J.:

The findings of the referee show that all the services rendered by Buckles & Pearl for the defendant were paid for in full, except the services for which the court allowed the sum of $15, that being the amount that the referee found to be reasonable. The plaintiff does not complain of these findings, and this leaves the only question to be considered vfiiether the court ought to have allowed the retainer fees found by the referee and stricken out.

While the payment of a retainer to an attorney may be usual, and an agreement to make such payment may be implied in a proper case, it does not follow that such an agreement ought to be implied where all the particular services performed by the attorney are fully paid for. Indeed it does not seem to be the real claim of the plaintiff that the allowance by the referee, called a retainer, was really such. From his testimony it appears that the services were of that nature, responding to frequent calls from day to day, that it was impracticable to make a charge for each particular service, and so his claim was, as it seems from all his testimony, that his firm should be allowed a reasonable sum per-year for such miscellaneous services. The difficulty, however, with the allowance of such a claim, by whatever name it may be called, is the finding of the referee that all the services performed by the firm, with the exception of that for which judgment was rendered, were paid for, a finding which was not attacked in the district court and is not.complained of here.

From a consideration of the services rendered, the amounts involved, and the importance of the questions considered, the amount paid by the company appears to be very modest indeed, if not inadequate; but as the finding of the referee that it was reasonable was not challenged, the question is- not now open for consideration. In the absence of an express agreement to pay a retainer, the services actually performed having been paid for, we can not say that the district court erred in setting aside the finding of the referee that an agreement to pay a retainer each year should be implied. (Blackman v. Webb, 38 Kan. 668, 17 Pac. 464; Windett v. Union Mutual Life Ins. Co., 144 U. S. 581.)

The judgment is affirmed.

OPINION ON REARGUMENT.

Per Curiam:

This case was heard at the November session, 1908, and the opinion was filed at the December session. Through some mistake the case was also placed upon the docket for the January, 1909, session. Counsel for plaintiff did not attend the November session, supposing that the case had been reassigned for January. Upon his suggestion of a desire to be heard orally the assignment for January was permitted to stand for reargument. Both parties presented additional briefs. Upon due consideration we adhere to the views expressed in the foregoing opinion.