CARSON Admx. v. McMAHAN Admr , 215 Or. 38 ( 1958 )

SLOAN, J.

The plaintiff, Myrtle A. Carson, filed her complaint herein against the late L. H. McMahan seeking a declaratory judgment. She makes these allegations: That her deceased husband, John H. Carson, had been an attorney at law; prior to his death he had participated as an attorney jointly with L. H. McMahan in the trial and appeal of the case of Putnam v. Jenleins, 204 Or 691, 285 P2d 532, as a result of which a substantial attorneys’ fee had been earned by the efforts of her deceased husband and L. H. McMahan; that the efforts of her deceased husband had been instrumental in the successful determination of the Putnam case in favor of the clients of said attorneys; that she did not know of the nature of the agreement, if any, existing between said attorneys and between the attorneys and the client in respect to the fee to be paid and how it was to be divided; that a controversy had developed between herself and L. H. McMahan “regarding said matter of attorneys’ fees, said L. H. McMahan asserting and contending that the said John H. Carson has been fully paid for all of his services so rendered * * *”; that it was necessary for the court to declare the rights of the parties to the fee and that plaintiff’s share should be imposed as a lien on the decree entered in the Putnam case as well as upon the property rights fixed by the decree. The defendant, McMahan, answered and denied that any portion of the fee was owing to Carson, or his estate. He affirmatively alleged he had paid Carson in full for all services rendered. In order better to understand the issues involved in the instant ease we believe a resume of the facts culminating in this dispute is necessary.

The reported opinion in the Putnam case fully discloses the issues and parties to that proceeding. No further discussion thereof is necessary. McMahan first filed an answer in behalf of one of the defendants named in the original complaint. He subsequently filed a complaint in intervention in behalf of a party named Pettingill. It was upon this complaint in intervention that the proceeding was determined in the trial court and on appeal. It was in its support that Mc-Mahan engaged Carson.

At the time that McMahan entered the case he was afflicted with the infirmities of advanced age and with physical handicaps growing out of an automobile accident he had suffered. The record is clear that he was aware that he could not handle litigation of this complexity. He was aware that he required a lawyer of sound ability and experience to assume the onerous task of the preparation and trial of the case and to share in, if not assume, the heavy responsibility that attends every lawyer in asserting and protecting the rights of his client in litigation. He engaged the services of plaintiff’s intestate, John Carson. The latter was a highly capable and experienced lawyer of Salem. He was a long-time personal friend of Judge McMahan. From thence forward Mr. Carson carried the bulk of the burden of the case which culminated successfully for the clients of Judge McMahan and Carson.

In June of 1950 Judge McMahan had entered into written contract with his clients, the Pettingill family, by which he was to receive for his fee 50 per cent of any property, or its proceeds, derived from the litigation. When the case was concluded this 50 per cent was equal to about $75,000. However, before the fee could be realized and its division made by Carson and McMahan, John Carson died. When the plaintiff, as his widow and personal representative, approached McMahan for Carson’s share of the fee McMahan asserted he had already paid Carson in full by the means now to be described.

During the years that the case was in process, beginning December 14,1950, and extending to June 7, 1955, McMahan had made and delivered checks payable to Carson in the total sum of $715. The checks were in denominations of $25 to $100. He also contended he had given Carson cash in addition to the checks; that the total amount paid Carson, cash and checks, was about $1,000. Following Carson’s death McMahan claimed he had “hired” Carson as an employe and had paid him in full by these checks and cash. McMahan died shortly before the trial of this case but his testimony had been perpetuated by a deposition taken earlier. In the deposition McMahan testified that he had paid Carson this money for services rendered by Carson at the various stages of preparation, trial and appeal; that Carson had been paid in full.

Defendant asserts that,this is persuasive evidence that an agreement existed between Carson and Mc-Mahan, by the terms of which Carson was to be paid only for each service rendered and that the checks, therefore, constituted payment in full. It is the plaintiff’s contention that these payments were only advances and that there was no specific agreement between Carson and McMahan.

The parties agree to the general rule that if there be a complete absence of a specific agreement as to the division of a contingent fee between attorneys associated in the prosecution of a ease, the fee is to be divided equally. Bailey v. Griggs, 174 Okla 90, 49 P2d 695; Underwood v. Overstreet, 188 Ky 562, 223 SW 152, 10 ALE 1357; Brauns v. Eousden, 195 Wash 140, 79 P2d 981. The trial court found an absence of agreement and, accordingly, awarded an even division of the fee. The assignments of error in defendant’s brief are three in number. However, the actual, and only, question to be determined is thus expressed by defendant’s brief; “It is the contention of defendants there, and appellants here, that John Carson was hired, and the evidence shows that he was paid attorney’s fees for the work performed by him during the prosecution of the Pettingill suit.” (Italics theirs.)

We do take specific notice of defendant’s first assignment, for by it he challenges the sufficiency of the complaint. We find no merit in this contention. It alleged a “* * * failure on the part of defendant to discharge some positive legal duty with respect to some right of plaintiff. *=»*.*** [a] complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to legal rights and duties of respective parties * * 1 Anderson, Declaratory Judgments (2d ed) 588, § 253. In addition the parties stipulated the issues to be presented to and determined by the trial court. The court heard and determined the facts in accordance with the contentions of the parties as outlined by their respective counsel at the beginning of the trial “* * * where an action for a declaratory judgment is submitted upon a stipulation that completely covers the case, then the matter of pleadings becomes immaterial * * 1 Anderson, Declaratory Judgments (2d ed) 706, § 304.

The remaining assignments go to defendant’s contention that the trial court erred in finding no agreement existed. We think it only necessary to state that the evidence is not sufficient to establish an “agreement.” Although McMahan may have intended that there be such an agreement and wrote checks to Carson pursuant to such intention, this does not establish Carson ever gave expression, express or implied, of that assent which is “indispensable to the formation of an agreement.’-’ Reed v. Montgomery, 180 Or 196, 223, 175 P2d 986. Neither McMahan’s testimony nor the other evidence is sufficient to meet this test. There is no believable evidence that Carson acknowledged full payment or manifested any such intent or assent. Restatement, Contracts 25, § 20. “In the absence of a more specific agreement between them, the law implied an equal division of such, fee.” Gill v. Mayne (Iowa), 162 NW 24, 26.

One other factor is very persuasive to our determination. As herein indicated, defendant has contended from the outset that Carson had been paid in full in accordance with an agreement that Carson had recognized. This is repeated in pleadings, trial and brief. However, at the conclusion of the trial of this case the defendant submitted proposed findings of fact. Finding No. V proposed that in addition to the sum alleged to have been paid to Carson in full satisfaction, he should be awarded an additional sum of $10,000 “to compensate him for favorable results obtained in litigation while associated with L. H. Mc-Mahan.” (Italics ours.) We take this proposed finding as a judicial admission that Carson was something more than a “hired” hand and that he had not been paid in full. McCormick on Evidence 520, § 244; Archambeau v. Edmunson, S. Or 476-88, 171 P 186.

We believe further discussion to be unwarranted. A detailed delineation of further facts would be of interest only to the parties involved. We have given careful attention to the entire record and the briefs. The trial judge heard and decided this case with meticulous and sensitive care. We agree with his findings and concur with the opinion he rendered supporting them. We believe the ends of justice would best be served by limiting this opinion to that conclusion. We affirm the trial court’s decree and award costs to neither party.