Perkins v. West Coast Lumber Co.

GAROUTTE, J.

This action was brought to recover for services rendered as an attorney at law. Defendant filed a counterclaim and cross-demand, alleging damages accruing by reason of legal advice negligently given. The action has been before this court upon two previous occasions, 'but the point now raised by this appeal is presented for the first time. The cross-demand for damages set forth in defendant’s answer was held to be established by the evidence, and judgment was rendered by the trial court in favor of defendant for costs.

It is now claimed upon the part of the plaintiff that neither the defendant’s pleading, the answer of plaintiff thereto, nor the findings show, at the time the legal advice was given to defendant by plaintiff, the existence of the relation of attorney and client between them. In this regard the cross-complaint of defendant alleges: “That said plaintiff, acting as attorney at law and as adviser and counselor for the defendant in the premises, wrongfully and negligently disregarding his duties as such attorney at law, adviser, and counselor, advised the defendant, on or about the fifteenth day of May, 1888, not to file for record in the county recorder’s office .... any claim of

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lien,” etc. In his answer to this pleading the plaintiff says; "But plaintiff alleges that at no time prior to the fourth day of June, 1888, was this plaintiff attorney for, adviser, or counselor of the defendant, the West Coast Lumber Company, and that said plaintiff was not in the employ nor in any manner retained for said defendant, nor did said plaintiff ever receive from the said defendant any consideration whatever for any services of any kind or mature alleged to have been performed by said plaintiff for said defendant at any time prior to the fourth day of June, 1888.” The evidence is not before us, but the finding of fact bearing upon this matter is as follows: “That on the seventeenth day of April, 1888, or a day or two prior to said seventeenth day of April, 1888, the defendant sought and obtained of the plaintiff advice in reference to filing a material lien against said Newman for the lumber defendant had furnished said Newman, as aforesaid. That said plaintiff advised the defendant not to file any lien, for the reason that said Newman was about to file a lien as an original contractor,” etc.