Schmalz v. Arnwine

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiff recovered judgment for $875, for attorney's fees, from which defendant appeals.

AFFIRMED. This is a civil action prosecuted by an attorney at law, who is seeking to recover compensation for professional services rendered to the defendant. The case was tried in the Circuit Court of the State of Oregon for Harney County. It was filed on May 26, 1925. The action was based upon an account for the alleged reasonable value of professional services rendered by the plaintiff to the defendant between August 21, 1921, and October 31, 1924. The complaint alleges the value of such services

See 27 R.C.L. 896. to be the sum of $1,550, which were rendered by the plaintiff to the defendant in appearing and representing him in a number of criminal and civil actions heard in the courts. It was averred that no part of the $1,550, representing the aggregate sum due on twelve different items of services rendered, had been paid, excepting $275, leaving a balance due, owing and unpaid from the defendant to the plaintiff of $1,275.

In his first answer the defendant, in answering plaintiff's complaint, put in issue the value of plaintiff's services, and averred payment. In an amended answer he denied value and plead settlement, satisfaction and discharge of any and all claims due or owing from him to plaintiff for such attorney's fees. This action came on for trial, and was heard on October 9 and 10, 1925, when a verdict was returned by a jury in favor of plaintiff in the sum of $825, upon which judgment was entered. Later, a motion for a new trial was made and overruled.

The defendant asserts that the lower court committed error growing out of the following facts: The complaint demands judgment for a balance of $1,275; an itemized bill for plaintiff's alleged professional labors served upon the defendant shows that the several items aggregate a sum amounting to $2,167,50, less $275, paid thereon. The difference in the amount alleged to be due and the sum set forth in the itemized statement is accounted for by this notation, made a part of the itemized account: "Action has only been brought for the collection of $1,550, we having taken off about 25 per cent in order to make our charges as reasonable as possible."

It is asserted that the court committed error in allowing the plaintiff to submit evidence tending to establish the full value of each item as charged, and instructing the jury in relation thereto.

It appears that the payment of $275, was not credited to any particular item, but was allowed as payment on the total amount due. To establish an issue made in the trial of the cause, the plaintiff offered testimony, which was admitted over objection and exception, tending to show the value of the plaintiff's services for each item charged in the account. It is difficult to understand how the real value of such services could be established unless witnesses were permitted to testify thereto. The court was careful to instruct the jury that no verdict could be returned for a greater total amount than $1,275, the sum asked for in the complaint, notwithstanding the value thereof. The court did not err in its ruling.

Error is also asserted from the fact that some of the items of service grew out of certain criminal actions, one for the larceny of bacon from a smokehouse, the other for larceny of a still from the courthouse of Harney County. The defendant asserts that in the admission of plaintiff's evidence he was permitted to testify to more than two criminal offenses, and that such testimony had a tendency to affect the credibility of the defendant as a witness. In his brief the defendant says: "We think that possibly a man charged with two (2) crimes might have a chance to have some reliance placed upon his testimony by the jury, but after those alleged crimes had been magnified into five (5), the testimony which might be given by a witness before that jury would receive very little consideration."

The record does not show five cases as asserted by the defendant. The record does show defective indictments and resubmission of the causes therein charged to the grand jury. In a legal sense there was one case involving the larceny of six hams, four shoulders and "eight pieces of bacon" of the aggregate value of $74. On account of an imperfect indictment being challenged the case was resubmitted to the grand jury, and another indictment returned. The defendant was the same, the bacon was the same bacon alleged to have been stolen in the original indictment, and all the circumstances were identical with the original transaction; it was not a different case, it was the same offense. In a legal sense "case" means "cause," "a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice." 10 C.J. 1247.

The defendant was also accused by indictment of the grand jury of the crime of larceny, by feloniously stealing, taking and carrying away four sacks of sugar, valued at $40, four boxes of peaches valued at $14, and one still valued at $100, the personal property of W.A. Goodman, sheriff of Harney County. The indictment having been resubmitted, the grand jury subsequently reported into court another indictment charging the larceny of the same property at the same time, by the same defendant, and the identical transaction was charged in each indictment; hence the same case was involved. The plaintiff was one of defendant's attorneys throughout all court proceedings.

The value of the plaintiff's services in representing the defendant in the criminal cases above referred to was made a matter of issue, and the court properly admitted the testimony relating to the services of plaintiff in each of the criminal cases.

"It is customary and permissible, in actions for compensation, to introduce evidence as to the nature and extent of the services rendered, for the purpose of showing their value. Thus, the questions of law involved — their intricacy, difficulty, or novelty — may be shown. * * The importance of a cause to the client is worthy of consideration in determining the value of the attorney's services, and evidence thereof may be introduced for that purpose." 2 Thornton on Attorneys at Law, §§ 535, 536. See, also, 2 Ency. Ev., p. 154.

In the cause at issue it should require no citation of authority in support of the proposition that an attorney at law who sues for compensation must prove the value of his services. We have seen that the importance of the litigation to the defendant is a matter fit for consideration in fixing the value of the attorney's fees. In the case at bar, the defendant was accused of the commission of felonies; in truth, the indictments charged both burglary and larceny. The court carefully instructed the jury in the matter of the elements to be considered in determining the reasonable value of the plaintiff's services.

In determining the reasonable value of the services performed by an attorney, it is customary to consider:

"(1) The ability, standing, skill and experience of the attorney: (2) his reputation as a specialist in the particular line of professional business in which he was retained: (3) the necessity and demand for his services: (4) the nature and character of the controversy, the questions involved therein, and therein, and the importance of the litigation: (5) the responsibility assumed: (6) The time and labor expended, and the benefits derived therefrom: (7) The amount involved, (8) the result: and (9) any other circumstances attending the cause, which, according to established usage, will serve as a guide in determining what is a proper charge." 2 Thornton on Attorneys at law, § 449.

The problems in the cause at issue were questions of fact determinable by the jury under apt instructions which were duly given to the jury.

7, 8. In his brief the defendant contends that the court erred in overruling his objection to plaintiff's counsel reading and commenting upon certain allegations contained in the original answer as being in conflict with the amended answer. The bill of exceptions fails to disclose what the counsel said, or what, if any, objection or ruling was made thereto. Finally the affidavits of certain jurors are relied upon to impeach their verdict. Such affidavits will not be received for that purpose: State v.Smith, 43 Or. 118 (71 P. 973).

The record before us fails to disclose prejudicial error; therefore, the judgment of the lower court is affirmed.

AFFIRMED.