Burdick v. Mann ( 1931 )

Plaintiff instituted this action to recover the sum of $10,000, the alleged reasonable value of professional services which plaintiff claims to have rendered the defendant at her special instance and request in his capacity as attorney and counselor at law.

The answer of the defendant, while admitting the employment of the plaintiff as her attorney, denied the value of the services, and set up a counterclaim, alleging that she had been damaged by the carelessness and negligence of the plaintiff in handling her litigation in the sum of $173,000. The jury found against the defendant upon her counterclaim, and returned a verdict in favor of the plaintiff in the sum of $9,000.

The record discloses that in the year 1917 the defendant and George D. Mann were husband and wife, and at that time purchased at a receiver's sale the newspaper and publishing business known as the "Bismarck Tribune," for the sum of $13,600. The sum of $6,500 for the purchase of the property was advanced by the defendant, and this was later repaid to her from the profits of the Bismarck Tribune Company. The balance of the purchase price was likewise paid from time to time from the profits of the business. Mr. and Mrs. Mann then organized the Bismarck Tribune Company, a corporation, with a capital stock of $25,000, divided into 250 shares of the par value of $100 each. The incorporators of the Bismarck Tribune Company were the defendant and her husband and her sister, Minnie Ostrander, and they were the sole stockholders. Two hundred forty-eight shares of stock were issued in the name of the defendant, one share in the name of her sister and one share in the name of her husband. Her stock certificate, however, remained in the stock book, and was never withdrawn by her until October, 1927, when some difficulty arose between her and her husband. George D. Mann was the president and general manager of the company, the defendant was secretary and treasurer, and the three stockholders constituted the board of directors. From 1917 to 1924 the defendant took a more or less active part in the business. From 1924 to 1927 the defendant spent a large portion of the time in Boston, Massachusetts, because of the illness of her daughter and because of her desire to educate her daughter and her foster daughter. The business of the Bismarck Tribune Company had grown by leaps and bounds, so that for a number of years prior to 1927 the defendant and her husband were each drawing from the business $200 a week, and the profits were approximately $40,000 to $60,000 a year. In 1927 the fiscal valuation of the Bismarck Tribune Company was about $309,000, $50,000 of which was for the good will of the business and $25,000 for the Associated Press franchise.

In October, 1927, George D. Mann commenced an action in the district court of Burleigh County to restrain the defendant from interfering with the business of the Bismarck Tribune Company, and to determine the ownership of the stock. And it was at this time that the defendant first employed the plaintiff, Mr. Burdick, as an attorney to look after her interests.

The evidence shows that at the time of the trial the plaintiff was 50 years of age; had been a resident of North Dakota for 48 years; was a graduate of the University of Minnesota; had been engaged in the active practice of law in North Dakota for 25 years; was a member of the State Legislature in 1907; Speaker of the House in 1909; Lieutenant Governor in 1911; State's Attorney of Williams county for 6 years; and was then Assistant United States District Attorney at Fargo, and general counsel for the Farmers Union, with a law office at Fargo and a branch office at Williston, North Dakota.

On October 17, 1927, the plaintiff came to Bismarck at the solicitation of the defendant, and was employed by her as chief counsel to take care of all matters that might arise touching her property rights in the Bismarck Tribune Company, and also any further litigation that might be commenced. Judge Jansonius had issued a restraining order in the injunction suit, restraining the defendant and her auditor, Mr. Luehe, of Minot, from interfering in any way with the business of the Bismarck Tribune Company. The plaintiff secured a modification of this order, allowing an audit to be made, but the original injunction restraining the defendant from appearing in the Bismarck Tribune Company plant or taking part in the management of its affairs continued in force. It was about this time that the defendant withdrew from the stock book the certificate of stock issued in her name for 248 shares. A few days later George D. Mann commenced an action for divorce against the defendant, and the plaintiff, as attorney, appeared for the defendant and served an answer in the case. There was an amended complaint in the divorce proceedings, and also an amended answer and a cross-bill filed by the defendant in which she asked for a divorce. From this time until February, 1928, there were numerous consultations between the plaintiff and the defendant in reference to her rights, and in reference particularly to a possible settlement of the divorce proceedings and her property rights. During this period other counsel had also been employed to look after the defendant's interests and to assist Mr. Burdick, namely, the firm of Lovell Horner, of Fargo, the firm of Dullam, Young Burke, of Bismarck, and George A. Bangs, of Grand Forks. Both the injunction suit and the divorce suit came up for trial before Judge C.W. Buttz at Bismarck about the 13th of February, 1928. George D. Mann was represented by the firm of Sullivan, Hanley Sullivan, of Mandan, and Zuger Tillotson, of Bismarck. Numerous consultations were had between the attorneys, and finally on February 17, 1928, a stipulation of settlement was made, by which it was agreed that the defendant was to receive from George D. Mann the sum of $165,000, secured by a bond issue upon the entire property and plant of the Bismarck Tribune Company, at the rate of 5% per annum. The bonds were payable at the rate of $6,000 every six months for a period of 23 years, making an aggregate of $278,000. In addition, the defendant received the family home at Bismarck and its contents, worth from $30,000 to $35,000, the family Cadillac automobile, valued at about $1,500; and was awarded the custody of her minor daughter, Eleanor Mann. Defendant was permitted to prove up her divorce action, securing a divorce on the grounds of cruelty and inhuman treatment. There being some question as to the validity of these bonds, the plaintiff instituted proceedings before Judge Buttz to have their legality passed upon. Judge Buttz found in favor of the validity of the bonds, and the matter was appealed to the supreme court, and the decision affirmed. See Mann v. Mann,57 N.D. 550, 223 N.W. 186.

On this appeal the defendant has set forth a large number of specifications of error. But for the sake of convenience and brevity we shall group these as follows:

(1) The alleged error of the trial court in advancing the case upon the calendar over the objection of the defendant; in refusing the application of the defendant to continue the case over the term, and in denying the motion of the defendant to abate the action.

(2) Error of the trial court in overruling the objection of the defendant to the introduction of any testimony, for the reason that the plaintiff had failed to furnish a bill of particulars upon demand.

(3) Errors of the trial court in the admission and rejection of testimony; the action of the trial court in participating in the examination of witnesses, and the misconduct of counsel for the plaintiff in the asking of prejudicial questions.

(4) Error at the trial in the reception of the testimony of expert witnesses as to the value of the plaintiff's services.

(5) Errors in the instructions of the court.

(6) Insufficiency of the evidence to justify the verdict, and the excessive amount of the verdict.

We shall take up these specifications of error in their order.

Under specification number 1 herein, it appears from the record that the case was regularly on the trial calendar for the December term of court which opened at Bismarck on the 9th of December, 1929, Hon. R.G. McFarland, Judge, presiding. At the call of the calendar this action was given number 53 on the call of civil jury cases. On December 17, 1929, William Langer, as attorney for the plaintiff, served a notice of motion, returnable December 18, 1929, that he would ask the court to advance the case on the trial calendar, placing it for trial between the 26th of December, 1929, and the 6th of January, 1930, to accommodate certain material witnesses for the plaintiff, among them Hon. C.W. Buttz, of Devils Lake, Hon. Alfred Zuger, of Bismarck, and John F. Sullivan, of Mandan. This motion was heard before Judge McFarland on December 21, 1929, the court taking the matter under advisement at that time and asking Mr. Langer to submit an additional affidavit covering certain statements made orally to the court but which had not been included in his moving papers. Counsel on both sides were present at the hearing, but no affidavits were filed in opposition to the motion, and the record before this court is silent as to what showing of resistance was made. It does not appear whether or not counsel for the defendant suggested any particular date for the setting of the case or that any delay was necessary to accommodate the defendant or her witnesses. On December 20, 1929, before hearing the motion in question, Judge McFarland excused the members of the jury panel, with the exception of the twelve on the case in which he was then engaged, until January 7, 1930, and on December 21, 1929, he recessed the term until January 7, 1930, subject to such business as might be legally brought before the court and excused the balance of the jury until that date. It was on this date also that he heard the plaintiff's motion and took it under advisement. On December 28, 1929, the additional and supplementary affidavit which Judge McFarland had requested the plaintiff's attorney to supply was presented to the judge at his chambers in Jamestown. In this affidavit specific attention is directed to the fact that a similar action was pending in Clay County, Minnesota, and that the case was set there for January 13, 1930, and upon information and belief it is stated that the Minnesota action was started for the reason that the plaintiff was unable to get service upon the defendant in North Dakota; that the Minnesota action could not be dismissed on account of the counterclaim filed by the defendant which she refused to dismiss; that the plaintiff desired to use as material witnesses a number of North Dakota lawyers (naming them), some of whom (also naming them) had actual knowledge of the transactions involved in the litigation between George D. Mann and the defendant; also that the affiant had communicated with Judge Buttz who had promised to attend and testify if the case should come on for trial on the 9th or 10th of January. Judge McFarland on the date he received this supplementary affidavit issued an order directing the clerk of court at Bismarck to reconvene the term and to recall the jury for service at 10 A.M. January 3, 1930. A copy of this order was mailed to Mr. Hellstrom, attorney for the defendant, at Bismarck on December 31, 1929, and received by him the same evening.

When the case was called for trial on January 3, 1930, Judge Grimson was presiding in place of Judge McFarland, and at Judge McFarland's written request under the statute. The defendant, through her counsel made a special appearance for the purpose of objecting to the jurisdiction of the court, the objections being that the jury panel called for the December term had been excused; that the term stood adjourned until the 7th day of January; that there had been no special term called meanwhile and no jury subsequently drawn in accordance with the law; that the order advancing the cause was arbitrary, in violation of sound discretion, "ultra vires, null and void;" that Minnie Ostrander, a resident of Los Angeles, California, was an important witness for the defendant, and that she could not safely go to trial without her testimony which it would be impossible to secure by January 3rd; that the presiding judge was not one of the judges of the second judicial district, nor one who had been designated by the supreme court. Judge Grimson overruled the objections. The defendant then filed an affidavit of prejudice against Judge Grimson and Honorable John C. Lowe of Minot was regularly designated by the supreme court. The defendant appeared before Judge Lowe on January 4th and made a further motion to nullify and vacate the order of Judge McFarland, supporting the same by an affidavit in all substantial respects identical with the one which had been presented to Judge Grimson in support of the objections to the jurisdiction of the court. This motion was denied by Judge Lowe. The defendant then moved for "an order to dismiss and abate the action" and showed in support thereof the pendency of the Minnesota action and that the same was set for trial on the 13th of January. This motion was likewise overruled, whereupon a motion for continuance was made by the defendant supported by an affidavit, again showing that it would be impossible to secure the testimony of Minnie Ostrander, showing that the Minnesota case had been set for trial on the 4th of December, 1929, and that upon a showing made by the plaintiff it was set for January 13, 1930; that the order setting this case for January 3rd had taken the defendant by surprise and that she could not safely proceed to trial. This motion was overruled, whereupon the defendant immediately served and filed notice of appeal, specifications of error and undertaking on appeal from the orders which had been entered denying the various motions. She applied to the court for an order fixing the terms and conditions of a stay bond on appeal, which was likewise denied, and the case then proceeded to trial. The appeals from these orders were later heard and the supreme court in Burdick v. Mann, 59 N.D. 611, 231 N.W. 545, held the orders not appealable but that on appeal from the judgment the errors complained of could be reviewed in this court.

It is our view, upon a review of the record, that no error was committed by the trial court in ruling upon any of these motions, and we shall state our reasons briefly.

The general rule with reference to the right of the trial court to determine the order of trial of cases properly upon the calendar is stated in 38 Cyc. 1282, as follows: "A cause cannot be heard, in opposition to the wishes of either party, before it stands regularly for hearing, and causes should ordinarily be tried in the order in which they are entered on the trial docket. But the court has power and discretion to take up a case out of the regular order, for good cause, providing the parties are not prejudiced thereby, and a cause may properly thus be taken up to prevent a continuance by reason of anticipated absence of leading counsel. After a cause is once regularly set for hearing, it may be reset without regard to priority, and upon a day upon which a cause has been properly set for trial, or thereafter, and the court may pass over intervening cases and try the case. Where the statute requires cases to be called in their order, the court thus calling them may set cases ready for trial on a day thereafter. A statute providing that the court may for good and sufficient reason order a cause heard out of the regular order confers on the court a wide discretion, and what is a good and sufficient reason is for the trial court to determine, which determination will not be reviewed unless the trial court has grossly abused its discretion."

The only question then is whether or not there was an abuse of judicial discretion. This record clearly shows that there was not. This matter had been on the calendar for the December term at Moorehead, Minnesota, as well as in Bismarck, North Dakota. Trial there had been adjourned by order dated December 5th until the 13th of January, 1930, so that Mr. Hellstrom had ample time to know that his case would be reached for trial either on the 13th of January in Moorhead or prior thereto in Bismarck. Mr. Langer's notice of motion was served on the 17th of December. The motion was argued on the 21st of December, and the court then took the matter under advisement, asking Mr. Langer to file an additional affidavit. The defendant then had every reason to anticipate that the case might be advanced upon the calendar, not later than the 6th of January, 1930. It is to be borne in mind that there was no affidavit before Judge McFarland showing how the defendant would be in any manner inconvenienced by the trial of the cause on any date he might set to subserve the convenience of the plaintiff and his witnesses. It is readily inferable from affidavits later supplied by the defendant that she was ready for the trial of the action in Minnesota as early as December 4, 1929, and the order of the judge of the district court of Clay County shows that postponement there was obtained by the plaintiff upon the payment of terms to the defendant. Other affidavits show that at the time of beginning the action in Minnesota the plaintiff had reason to believe that the defendant was a resident of that state; that later the defendant, in order to quash service of summons by publication in an action begun in North Dakota, made a showing by affidavit that she was at all times a resident of Bismarck, North Dakota; that on this showing an order was obtained quashing the service and another order obtained removing the action for trial to Burleigh county, the residence of the defendant. It thus appears in the record that both the plaintiff and the defendant are residents of North Dakota; that the services for which the action was brought were rendered in North Dakota; and that practically all the material witnesses lived in this state. Though it be entirely appropriate in the circumstances shown in this record for the instant action to be tried here, there is no basis whatever for any assumption that all the defendant was asking was a brief delay for convenience. On the contrary, the only deduction that can reasonably be drawn is that the defendant desired to force a trial in another state. In any event, there is no showing on behalf of the defendant that she was in any way prejudiced by thus advancing the case upon the calendar.

This brings us to the question of her application for a continuance. Her motion for a continuance based upon the absence of material witnesses was entirely inadequate under our practice. Continental Supply Co. v. Syndicate Trust Co. 52 N.D. 209,202 N.W. 404. The only witness that the defendant claimed to be material was her sister, Minnie Ostrander, living in Los Angeles, California. The moving affidavits as to what her testimony would be, or in what way it would be material at the trial, were very indefinite. There was no showing that any attempt had been made to procure her testimony in advance, or that there was no other witness available by which the thing sought to be proved by her could have been proved. And there was no showing on behalf of the defendant that she was not as ready and as well prepared for trial on January 3rd as she would have been at any other date if a short continuance had been granted. There is not even a showing that the witness could not have been present in ample time to testify.

It has been suggested that the showing made for continuance is as definite and sufficient as are the affidavits for the advancement of the case on the calendar. This is not a game of matching affidavits. Different principles apply in moving the discretion of the court in the arrangement of his calendar and in invoking a discretion to continue a case. Entirely different objects are sought to be attained and different rules are necessarily applicable. Concerning the discretion of the judge of the district court in setting a case for trial this court has said (Stockwell v. Crawford, 21 N.D. 261, 266, 130 N.W. 225, 228): "We know of no matter on which there is so wide an opportunity for the exercise of discretion pertaining to litigation as in the setting and arrangement of causes for trial by the district court, and in view of the immeasurably superior opportunities for intelligent judgment in such matters possessed by the district judge, it must in effect be left practically to his sense of the needs, relations, and necessities of the parties and the public."

Concerning defendant's motion to abate the action, the motion was made upon the theory that a similar action, upon the same pleadings and involving the same state of facts, was pending in the district court of Clay County, Minnesota. The defendant could not raise the question of abatement at this stage of the proceedings, and in this manner. Comp. Laws 1913, § 7447. This court, in Henry v. Maher, 6 N.D. 413 (on page 416 of the opinion) 71 N.W. 127, says: "The only way to raise this point is by an answer in the nature of a plea in abatement, if it does not appear upon the face of the complaint, or by demurrer if it does. If the point is not in this manner brought to the attention of the court, its judgment will be as valid as though no other action had then been pending. The defendant can never urge in the second case that the pendency of the former action is fatal to the jurisdiction of the court in which the second suit is pending, over the subject-matter."

If it be assumed, however, that the motion to abate was properly made, we feel that under the authorities the ruling of the court denying the motion was proper, for the reason that the other action was pending in a foreign jurisdiction. We find the rule set forth in 1 C.J. page 84: "Although there has been some difference of opinion on the question, it is now well settled that in the application of this doctrine the courts of the several states are to be regarded as foreign to each other, so that the pendency of an action in personam in one state, is not, as a rule, either at law or in equity, pleadable in abatement of an action subsequently commenced in another state between the same parties on the same cause, even though the court of the state in which the prior suit is pending has complete jurisdiction. A recovery in one may be pleaded to the further continuance of the other, but until that is obtained, or unless the court in its discretion grants a continuance by reason of the pendency of the first action, each may proceed to judgment and execution, when a satisfaction of either will require a discharge of both. But while the pendency of a prior suit in another state is not pleadable in abatement as a matter of right, the court may in its discretion stay or suspend the second suit to await the decision in the prior one.

"The rule that the pendency of an action in another state is not ground for abatement is not affected by the provisions of the codes that the pendency of another action between the same parties for the same cause may be made a ground for demurrer or set up as a defense in the answer, but such provisions are construed as applying only to suits pending in the same state."

We will now consider the defendant's claim that the court erred in not sustaining defendant's objection to the introduction of any evidence under the complaint because of the failure of the plaintiff to furnish a bill of particulars upon demand. The claim of the defendant is that under § 7457, Laws of 1913, the defendant having demanded before trial a bill of particulars as to the items of the plaintiff's account, it was incumbent upon the plaintiff within ten days after such demand to furnish a copy of the account, and having failed to do so the plaintiff was precluded from giving evidence thereof.

There is a distinction between a demand for the items of an account and a demand for a bill of particulars. Necessarily a bill for professional services rendered by an attorney would not contain the details of a commercial account. The word "Account" is used in rather a restricted sense, to items of work and labor, of goods sold and delivered. Jones v. Northern Trust Co. 67 Minn. 410, 69 N.W. 1108. And services rendered by an attorney covering litigation, appeals, preparation of pleadings and briefs, cannot always be itemized as separate charges, but may all be contained in one cover charge, as in this case of $10,000. It is the services rendered, the time occupied, the nature of the particular litigation involved, upon which the defendant may desire more detailed information. Hence, it is more in the nature of a bill of particulars than a statement of an account. And this court has held that a party is not bound to furnish the bill of particulars provided for by section 7457 on a mere demand, and that before a delivery thereof can be compelled or penalties inflicted for failure to do so, the court or judge must order that the bill of particulars be furnished. See Hanson v. Lindstrom, 15 N.D. 584, 108 N.W. 798; Baird v. National Surety Co. 54 N.D. 91, 98, 209 N.W. 204; also 49 C.J. 633, under footnote 67b. From these authorities it is clear that the lower court was correct in overruling defendant's motion.

We have examined carefully the many assignments of error which the defendant claims were made in the admission and rejection of testimony, in certain questions asked by the court and in questions asked by counsel for the plaintiff. It would be superfluous and useless to set forth all of these objections here. We are satisfied that there is not sufficient merit in them to warrant the court in taking the space or the time to comment upon them. There are only two points which the court deems of sufficient importance to comment upon specially. The first of these is the error which the defendant claims was committed by the lower court in the reception of the testimony of expert witnesses as to the reasonable value of the plaintiff's services. Defendant complains that their opinion was not given upon hypothetical questions, but that each witness was asked to base his opinion upon the reasonable value of such services from the testimony as given by the plaintiff himself. The defendant is correct in stating that it is the better practice to so frame the question that the expert has only to assume the truth of the facts therein stated. When he is called upon to form an opinion upon testimony which he has heard or read, there is danger that the witness in arriving at a conclusion will unconsciously pass upon the weight or credibility of the evidence. In determining the facts proved he will in effect usurp the province of the jury, and questions calling upon the witness to form an opinion based on the evidence which he has heard have often been rejected. But there is a strong line of decisions holding that where the testimony of a witness, or even of several witnesses, is not voluminous, and where there is no particular conflict, the expert may give an opinion based on the assumption that such evidence is true, and where there is no conflict as to the material facts the question need not be in hypothetical form. The witness is allowed to give an opinion from the evidence in such case upon the ground that by the terms of the question he is required to assume that the facts given in testimony are true and he is not required to draw any other conclusions or inferences as to the facts. See Jones, Ev. 3d ed. § 374.

This court in Walters v. Rock, 18 N.D. 45 (on page 54 of the opinion) 115 N.W. 511, uses this significant language: "This question was also objected to when asked the same witness: `You read the testimony of Dr. Rea, and you heard the testimony of Dr. Rogers read, you heard the testimony of Mr. Rock in regard to the condition of his lip. Now, from the testimony of Dr. Rea, Dr. Rogers and Mr. Rock, state whether or not in your opinion Mr. Rock was suffering from a cancerous growth on his upper lip at the time he was treated by Dr. Rea in May, 1904.' The objection to this question was that it called upon the witness to pass upon the credibility of the witness in case of conflict. On examination of the evidence given by these witnesses, we find no conflict as to the facts stated by them. The conclusion or opinion of Dr. Rea as to what defendant was suffering from differed from that of the other medical witnesses, but as to the facts and conditions of the ailment there was no difference. For this reason, the evidence was not objectionable, and did not call upon the witness to decide facts properly for the jury. The form of the question is not to be commended. It is the safer practice to incorporate all the facts relied on in a hypothetical question."

Applying the reasoning then to the case at bar, we are satisfied that it was not error to ask the witnesses whether they had heard the testimony of Mr. Burdick, and whether upon such testimony they were able to base an opinion as to the reasonable value of the services rendered. There was no conflict between the parties as to the services actually rendered. The only conflict was what such services were worth, if anything, or whether better services might have been rendered.

The defendant also takes exception to the question asked some of the expert witnesses as to what in their opinion the reasonable value of such services were to Mrs. Mann. It is true that this is not the proper form of question to put to an expert witness, but on the record in this case it was without any prejudice to the rights of the defendant. There can be no doubt the purport of the questions were plainly understood by the court and jury. There could be no misapprehension as to what was meant, and there is a large amount of expert testimony as to the reasonable value of the services in which the question was not put in that precise manner.

The defendant further contends that it was error for the court to refuse to permit her to prove the value of the $165,000 worth of bonds which she received in the settlement of her divorce case. Her claim is that these bonds were not readily salable on the market for cash, and were only worth some $25,000 or $30,000. Our reply to this is that there is nothing in the record to show that there was any competent evidence offered by the defendant as to the value of these bonds. It is true that she was asked on her direct examination to relate certain conversations that she had with certain people in Minneapolis, but this surely would be hearsay and would not be competent upon which to base value. The cash market value of the bonds was not particularly in issue. There was no question but what the bonds were amply secured. There had been no default in the payment of any of the bonds due, and no claim that there would be any default. So the mere fact that the defendant might not be able to take the bonds to some trust company or bond house in the Twin Cities and turn them into cash at their face value would not be very material in deciding either the rights of the plaintiff or the defendant in this action.

We now reach the question as to whether or not there was error in the instructions of the court to the jury. We have examined these critically, and while they might have been amplified and made somewhat clearer for the benefit of the jury, still we are satisfied that on the whole they state the law of the case correctly, and were sufficiently clear to enable the jury to know just what issues they were to pass upon. They sufficiently guarded every substantial right of the defendant, and the jury could not have been in any way misled by them.

The only remaining question then is as to whether or not there is sufficient evidence in the record to sustain the verdict, and whether the verdict is excessive. This court has repeatedly held that a verdict of a jury will not be disturbed where the evidence, if conflicting, warrants the interpretation placed upon it by the jury, and will not set aside a verdict of a jury unless it is clear that the verdict was arrived at through passion or prejudice or mistake.

The evidence here discloses that the plaintiff was defendant's chief counsel. His testimony is that he made some eight trips from Fargo to Bismarck upon her different legal matters; that he secured a modification of the original injunctional order; aided in the preparation of the pleadings; spent some sixty days all told in the work of preparing for trial, preparing briefs, appealing to the supreme court, and in the matters relating to her bonds; that he passed upon the form of the bonds, was largely instrumental in bringing the action to test their validity, prepared the brief upon appeal to the supreme court in that action; and claims that he secured for the defendant a very valuable settlement in her divorce action, and that the amount involved therein, namely, $165,000, which with interest covering a period of 23 years totaled $278,000, taken in connection with the other services rendered by him, was amply sufficient to warrant his fee of $10,000. It is evident that the jury looked at the matter from the plaintiff's point of view. The defendant did not deny any of the services, nor the time which plaintiff gave to her various matters. Her only claim was that the plaintiff should have secured more than $165,000 for her at the time of the settlement; that she was in fact the owner of the Bismarck Tribune at that time, because she held a stock certificate for 248 shares, therefore that the plaintiff should have procured the Bismarck Tribune Company plant for her and allowed her to pay alimony to her husband.

We see nothing in the evidence that would warrant the conclusion that the jury were swayed by passion, or prejudice, or sympathy. If they believed the plaintiff and his witnesses, the testimony was sufficient upon which to base their verdict. The estimate of the value placed upon the plaintiff's services by the experts who testified varied from $8,000 to $20,000. So that there was a wide discretion given to the jury, and we feel that their verdict of $9,000 under all the circumstances was not unreasonable or excessive.

For all of the reasons herein stated the judgment is affirmed.

CHRISTIANSON, Ch. J., and NUESSLE and BIRDZELL, JJ., concur.

BURKE, J., being disqualified, did not participate; Geo. M. McKenna, Judge of the Third Judicial District, sitting in his stead.