Hannon v. Goucher

ARCHBALD, J.,

pro tem.

Plaintiffs brought suit against defendant to recover the sum of $7,000, alleged to be due them for services as attorneys in a certain partition action. The amended and supplemental complaint contained two

[457]

counts, the first in

indebitatus assumpsit

for the recovery of the amount, and the second alleged in substance an agreement with defendant employing plaintiffs as attorneys in said partition action at a fee to be fixed by the court, the performance of the work for which they were employed, the fixing of a fee of $7,000 by the court for the work done and its nonpayment. The answer consisted of a general denial of the allegations of each count. The court found that all the allegations of the amended and supplemental complaint weré true and that the denials and allegations of the answer thereto were untrue, and rendered judgment for plaintiffs in the sum mentioned. From such judgment this appeal is taken.

Appellant contends (1) that the evidence is insufficient to support the findings and (2) that the court erred in excluding a certain written contract as evidence.

McLaughlin, one of the plaintiffs, testified that defendant came to his office and stated that it was impossible for himself and his wife to agree “upon an amicable division” of certain property which it apparently had been theretofore declared was held by them as tenants in common, “and that a suit would have to be brought to divide” it; that to this the witness replied: “Very well, Mr. Goucher, you understand this is a new and independent suit; it has nothing whatever to do with the contract of employment you had with Judge Earle and myself,” and that he, McLaughlin, “was not feeling well enough” to handle the litigation alone, but would want associate counsel; and that in response to such statement Mr. Goucher said, “All right.” McLaughlin further stated that he told defendant that “in this class of cases it is incumbent upon the court to fix the attorney’s fees, and if it is agreeble to you I will have Mr. Hannon associated in the case and ask the court to fix reasonable fees for us as attorneys in the ease”; that defendant ■replied “that was all right with him”, and that immediately thereafter the suit was prepared and filed; that plaintiffs acted as attorneys for defendant during the trial; that “immediately following the argument” the judge asked if they had a “contract for any definite sum as attorney’s fees”, to which the witness replied, “No, we do not . . . and I asked him to fix a reasonable amount as attorney’s fees for Mr. Goucher”; that Mr. Goucher was present at the time and