Johnson v. Miami Lumber Co. ( 1914 )

Opinion by

Mr. Chief Justice McBride.

The pleadings are voluminous, and the foregoing is only a summary, but it is deemed sufficient to present the issue tried in the court below. It appears from plaintiff’s testimony that plaintiff and C. W. Talmage were partners in the practice of law when the agreement with defendant for the rendition of legal services was entered into, and that while this agreement was in force a case entitled “Wheeler v. Miami Lumber Company” was instituted against defendant. The firm of Johnson & Talmage had been dissolved, but it was agreed between them that they would jointly conduct the business of the defendant, and share in the retainer of $30 a month. On September 23, 1911, the plaintiff wrote the defendant the following letter:

“Miami Lumber Company.

“I have written you heretofore concerning the man in your employ by name of Hiram Eadus. * * You have paid no attention to this, at least you have not answered my letter. * * Mr. Talmage and I have dissolved partnership a few months ago, but have been carrying on your business together. * * As you have ignored the recommendation heretofore made by me with respect to this man Eadus I wish to say that on and after the 30th day of September, which ends a quarter of our employment as your attorney, that unless you immediately discharge Eadus you may consider myself no longer as your attorney. # * This man Eadus is a disreputable trouble-maker. * * Now kindly understand that if you do not immediately discharge from your employ Hiram Eadus you may consider my resignation as your attorney, tendered to take effect on the 30th day of September.

“S. S. Johnson. ”

Defendant replied thereto as follows:

“October 5, 1911.

“Mr. Sidney S. Johnson.

“Replying to your letter of September 23d, regarding Mr. Eadus, will say we have written Mr. Bent about the matter and will communicate with you further.

“Miami Lumber Company,

“By Isham.”

Defendant sent the following letter to its agent in Tillamook:

“October 24, 1911.

“Mr. A. S. Bent.

“We have yours of October 18th with letter of explanation from Mr. Eadus. We accept the explanation and let the matter drop. Mr. Talmage is going to act as our attorney as Mr. Johnson has resigned.

“Miami Lumber Company,

“By Isham. ”

Bent did not notify plaintiff or Talmage of the receipt of this letter until after plaintiff had completed his services and won for defendant the case of Wheeler v. Miami Lumber Company, which was an important case involving a claim against it of several thousand dollars. After plaintiff had won this case and taken his share of the retainer from Talmage, supposing that his request had been complied with and the objectionable agent discharged, he was informed for the first time that his resignation had been accepted in October, and that he was no longer an attorney for the company. Without repeating it in detail, we think there was sufficient evidence tending to show that defendant’s agent in Oregon had willfully kept from plaintiff the knowledge that the objectionable employee had not been discharged, and that his resignation had been accepted to justify the submission of the case to the jury. It is clear that if plaintiff had known that his employment by defendant had been terminated and that he would no longer receive his share of the retainer theretofore paid to Talmage & Johnson, he would not have rendered the very valuable services given by him for the pittance paid him by Talmage. The defendant and its agent knew that he was rendering the services, and allowed him so to do after it had accepted his resignation; and its failure to notify Talmage or plaintiff that it had retained the objectionable employee, but had accepted Johnson’s resignation, might well satisfy a jury that it was seeking to obtain the benefit of his previous knowledge of the case, and his ability to conduct it to a successful issue, without giving an equivalent.

1. It is also urged that the court erred in instructing the jury in relation to the fraudulent conduct of the defendant in failing to notify plaintiff of the acceptance of his resignation before he had rendered the services above alluded to; but, for the reasons above given, we think the instruction was justified by the evidence.

2. It is true that in the course of the trial the court ruled that there had been no evidence of fraud and bad faith on the part of the defendant, and excluded testimony offered to show that Talmage had no knowledge of the acceptance of plaintiff’s resignation until after the trial of the case of Wheeler v. Miami Lumber Company; but this ruling was not excepted to, and cannot be considered here. In fact, there was no evidence that Talmage knew any more about the matter than did plaintiff. But there is evidence that defendant and its agent in Tillamook knew that Johnson was no longer under retainer by the company and was no longer a partner of Talmage, and, with this knowledge in its possession, continued to correspond with Johnson and to accept his services and their valuable results, without informing him that when they were terminated lie would no longer be in receipt of a retainer from it.

The verdict was just, and the judgment is affirmed.

Affirmed.

Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.