St. John v. United States Fidelity & Guaranty Co. , 56 Mont. 197 ( 1919 )

MR. JUSTICE COOPER

delivered the opinion of the court.

The plaintiff, C. C. St. John, and one C. M. Taintor were engaged in the business of stock-raising in the county of Rosebud in this state. A dispute arose involving the conduct of the business and the accounts between them. At the instance of Taintor, upon a claim of indebtedness due from the plaintiff to Taintor, writs of attachment were levied against the interests of plaintiff, and upon their discharge suit was instituted by the plaintiff against the defendant, as surety on the bond given by Taintor to secure the attachment. Judgment was obtained in the sum of $931.92, and the ease is now here on appeal from the order denying a new trial, and from the judgment.

The complaint charges the wrongful suing out of the attachment and the damages resulting therefrom, the answer denying all the material allegations thereof.

The plaintiff gave evidence concerning the several items of damage suffered by him in the matter of expenditures for travel from his ranch to Sheridan, Wyoming, for the purpose of consulting attorneys with a view to obtaining the discharge of the attachment, hotel bill at Sheridan, expense involved in travel from Sheridan back to the ranch, and thence to Forsyth for the purpose of securing bond to effect the release of the attachment, the cost of the bond, hotel bills at Forsyth, counsel fees in connection therewith, and other items of expense not necessary to particularize. Donald Campbell, Esq., of counsel for plaintiff, testified that services were rendered by the firm of which he was a member, in and about the attachment proceedings; that he had served as referee in an action for an accounting between plaintiff and Taintor, and as such became familiar with the matters in issue between them. He gave evidence touching the nature of the services so rendered, stating that in his opinion $250 was a reasonable compensation therefor. Albert Brown, the only witness for defendant, gave evidence tending to show that the attachment proceedings in no wise affected the pur-' chase by him of plaintiff’s ranch, or the payment to plaintiff of the purchase price thereof, thus raising an issue between himself and plaintiff upon that point, and the alleged damages suffered by plaintiff in this regard.

At the close of the testimony, counsel for plaintiff moved the court to direct a verdict in favor of plaintiff for the sum of $931.92, upon the ground that there was no issue of fact to be submitted to the jury. The motion was granted over defendant’s objection; verdict and judgment followed; motion for a new trial was made and overruled; and appeal was taken therefrom.

It is appellant’s contention that an issue'was created for determination by the jury upon the question of the reasonableness of the amount paid for counsel' fees, as well as the items of expenditure ineurred' by plaintiff in obtaining the aid of counsel. This contention must be sustained. The action is upon the attachment bond, conditioned that in case it should be finally decided that the plaintiff was not entitled to an attachment “the plaintiff will pay all the costs that may be awarded to the defendant, and all damages he may sustain by reason of the issuing [1] out of the attachment not exceeding the sum of $10,000.” The case was dismissed, and the attachment dissolved. Liability was then fixed upon the surety, and the defendant here became responsible for the expenses reasonably and necessarily incurred in obtaining the discharge of the attachment and the amount paid the attorneys employed for that purpose.

The trial court committed no error in directing the jury to find a verdict for the plaintiff, but was wrong in fixing the [2] amount of the award. Under the issues, the amount which the plaintiff had a right to recover was a debatable question of fact which it was the function of the jury to determine. . True, the witness Campbell fixed the amount that, in his opinion, was reasonable and necessary. But the jury was not bound to give unqualified credit to this testimony, given, as it was, in his own behalf, even though not contradicted by any other witness. A jury cannot be required to accept as matter of law the conclusions of witnesses in questions of this character. (Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; Plymouth Gold Min. Co. v. United States F. & G. Co., 35 Mont. 23, 10 Ann. Cas. 951, 88 Pac. 565.) Whether, in the accomplishment of a given purpose, expenses incurred are necessary and reasonable rests upon so many varying circumstances that it would be dangerous to preclude inquiry concerning them. Jurors, in the end, must use their own judgment in arriving at a determination of the value of services rendered by attorneys, based upon the opinions of experts and evidence as to the character and .amount of the services. (Baker v. Richmond City Mills Works, 105 Ga. 225, 31 S. E. 426; Moore v. Ellis, 89 Wis. 108, 61 N. W. 291; Chicago etc. Ry. Co. v. Whitney, 143 Iowa, 506, 121 N. W. 1043; Steel v. Gordon, 14 Wash. 521, 45 Pac. 151.) And so of the other items of expense incurred in securing the discharge of the attachment.

We think, too, that plaintiff was entitled' to recover the $50 [3] paid by him for the procurement of the bond to release the attachment upon the submission of sufficient competent proof of the payment of the same, especially in view of the fact that such action would in all likelihood tend to minimize the damage suffered by him and éventually relieve the surety company to that extent. On the whole, we are of opinion that the questions respecting the damages suffered by the plaintiff by reason of the attachment should have been submitted to the jury under proper instructions. The order of the trial court, therefore, in directing the jury as matter of law to find for the plaintiff in the lump sum of $931.92, was error.

The judgment appealed from, together with the order overruling the motion for a new trial, are reversed.

Reversed and remanded.

Mr. Chief Justice Bbantly concurs in the result. Mr. Justice Holloway concurs.