Felton v. Finley

GIVENS, Justice. March 1944, Seigle Finley and W. E. or William Finley, two of the three surviving nephews of Seigle Coleman, who died *383 testate December 4, 1943, employed respondent to contest the deceased Coleman’s will, which was successfully done. In re Coleman’s Estate, 66 Idaho 567, 163 P.2d 847. At that time respondent told Seigle and William Finley that he would accept the employment only on condition that the other nephew and brother, Orval Finley, and the three sisters, Ida Davis, Nan Holder, and Rose Finley Nichles, likewise employ respondent .as their attorney and that all six of the heirs participate in the contest. Respondent requested Seigle and William Finley to contact their brother and sisters and secure signed contracts of employment similar to the ones which Seigle and William signed; namely, on a 50% contingent basis. Respondent likewise wrote the other four heirs requesting their execution of such contracts. Such heirs never replied to respondent’s initial letter or to subsequent letters written by him continuing to request their execution of such contracts of employment and advising them as to the course of the litigation. Seigle and William Finley contacted two sisters, Nan Holder and Ida Davis in Pilot Rock, Oregon, with reference to their joining in the employment of respondent and related that: “ * * * they said they would have nothing to do with it. My oldest sister, Ida Davis, is very religious and she said she didn’t feel like protesting. She said, ‘What you boys do is your business, but I will have nothing to do with it.’ ” “Q. Did they, the two sisters, make any statement that they would not oppose the contest? A. The only statement they made was they would have nothing to do' with it one way or the other.” Testifying further that they (Seigle and William Finley) attempted to get the three sisters and the other brother to join with them — that is, in the employment of respondent in the prosecution of the contest, stating further: “A. I had quite a time contacting my brother (Orval). He was in Alaska part of the time and I called him in St. Paul, Minnesota, that’s his home, and he said, T am having nothing whatever to do with a dead man’s money.! ” and that he (Orval), “ * * * would have nothing to do one way or the other, what I did was my business, to forget about him.” and about the same as to Rose Finley Nichles: “She said she would have nothing to do with the estate. She said, ‘If you and Bill sign, that’s your business. I am not going to. There is no use sending the contract.’ I read it to her over the phone and she said, ‘No.’ ” Respondent testified he understood from Seigle and William, that while the other brother and sisters said they would have nothing to do with it, they would leave the further handling of the matter to Seigle and William and he prosecuted the action *384 on that basis, though Seigle testified he told respondent: “I told him I couldn’t get in touch with them and they wouldn’t sign and would have nothing to do with it.” William Finley testified with regard to the conference with the two sisters as follows: “A. * * * When they came we talked about the contract and breaking the will and my sisters were very much opposed to breaking the will or having anything to do with it, and we talked quite a while and I finally asked them if they would not fight us if we went ahead. “Q. Not fight you? A. That’s right, and they said they wouldn’t oppose us, but would have nothing to do with breaking the will. One of my sisters thinks it is a terrible sin. ' “Q. Did you have copies of the contract for the signature of Nan Holder and Ida Davis? A. We did. “Q. Were you able to get them to sign them? A. They would not. “Q. You advised Mr. Felton that you were unable to get those contracts signed? A. Yes, sir.” Mrs. Holder testified that when she was in Missouri, she followed the case in the Moscow newspapers and knew respondent was representing Seigle and William and admitted she had received one letter from respondent, but not the others. The other sisters and brother did not testify. At the conclusion of the contest action, distributive checks were made out to each one of the six heirs jointly with respondent for their respective shares, which the three sisters and Orval refused to accept, taking the position they had never employed respondent and were not obligated to pay him any fee and subsequent conferences between respondent and Mrs. Holder were unavailing. The present suit to establish the implied contract and to enforce the attorney’s lien, resulted with findings, conclusions and decree there was an implied contract of employment, from which decree the present appeal was taken. By stipulation, the appellants have been paid their distributive shares less the portion thereof claimed by respondent and decreed to him as his fee from them. These facts are established by the record without dispute: that respondent wrote the appellants to the effect he had been employed by their two brothers and he desired their co-employment; that he wrote them of the progress of the litigation and that they refused to sign the contracts and did not answer his letters; that at least one of them had actual notice of the progress of the litigation and being a matter of public record, and they being parties to the Probate proceedings, regardless of the contest because they were devisees under the will, they all had constructive notice of the proceedings ; and that they did not repudiate respondent’s appearing for them; that though *385 appellants did not affirmatively participate in the contest, they did not resist and immediately upon the contest being successfully concluded, claimed the additional shares in their Uncle’s estate which had been made available to them by the prosecution of the suit and respondent’s services in connection therewith, which resulted in benefits to the appellants, together with the two brothers who did actually employ him. While there are authorities to the contrary, Rives et al. v. Patty et al., 74 Miss. 381, 20 So. 862, 60 Am.St.Rep. 510, this case is at least weakened by Collins v. Schneider, 187 Miss. 1, 192 So. 20, at page 23. O’Doherty & Yonts v. Bickel, 166 Ky. 708, 179 S.W. 848, Ann.Cas.1917A, 419, and Pepper v. Pepper, 98 S.W. 1039, 30 Ky. Law Rep. 460, both recognized there might be an implied contract to pay for services. It is an elementary rule that, whenever services are rendered and received, a contract of hiring or an obligation to pay what they are reasonably worth will generally be presumed. 28 R.C.L. 668, § 3.” Hartley v. Bohrer, 52 Idaho 72, at page 75, 11 P.2d 616, 617. The rule applicable to the above situation has been recently declared in a Washington case to be as follows: case at bar, to one who has received the benefit thereof, a promise to pay the reasonable value of such services is presumed unless the circumstances establish the fact that such services were intended to be gratuitous.” (Citing authorities.) McKevitt v. Golden Age Breweries, 14 Wash. 2d 50, 126 P.2d 1077, at page 1081; Thomas v. Lewman, 190 Okl. 37, 120 P.2d 341. “The rule is well established that the acceptance of the services rendered by an attorney may raise an implied promise to pay therefor, which will supply the place of a contract of employment. If an attorney renders valuable services, as in the The record herein affirmatively and positively shows the respondent was not undertaking the services herein for anyone gratuitously. It is also held the acceptance of benefits must be voluntary, O’Doherty & Yonts v. Bickel, supra. The acceptance and receipt by appellants of their share of their enhanced inheritance were entirely voluntary, because there is no law which required them to accept the .greater amount; they could have taken only the $500.00 which the will initially gave them and refused the additional sum. Whatever scruples or feelings they had about not signing contracts, taking a dead man’s money or interfering with his will, had thus evidently disappeared when the money was made available to them, even though without their active participation. Nevertheless, it was solely through respondent’s efforts and successful prosecution of the contest case which procured this additional money for them and which, when thus secured to them by respondent’s services, they promptly demanded and have pocketed. Such course of conduct on their part amounts to such ratification and recognition *386 of respondent’s actions as to create in law an implied contract of employment and fully justified the decree in respondent’s favor. Morning Star Mining Co. v. Williams, 171 Ark. 187, 283 S.W. 354. There is no conflict in the evidence as to the reasonableness of respondent’s fee. The decree is, therefore, affirmed. Costs awarded to respondent. FEATHERSTONE and TAYLOR, District Judges, concur.