Argued December 6,

reversed and remanded December 27, 1917.

Motion to retax costs allowed in part January 29, 1918.

#### CAPLES *v.*DITCHBURN.*

(169 Pac. 510.)

Attorney and Client—Employment—Evidence—Satisfaction of Judgment.

1. That -defendant, sued for money collected by him on a judgment obtained by plaintiff, signed the satisfaction in his name as attorney for plaintiff, is some evidence that plaintiff employed him as attorney in the action in whieh the judgment was recovered; “attorney,” as distinguished from “counsel,” having under Sections 1074, 1083, L. O. L., power to satisfy judgment.

[As to implied authority of attorney in conducting litigation, see note in 132 Am. St. Rep. 148.]

Attorney and Client — Action for Money Collected — Presumption — Burden of Proof.

2. On evidence that plaintiff owned a judgment and that defendant as attorney collected it, the presumption is that plaintiff owned all the money collected; so that, if defendant would reduce plaintiff’s recovery or postpone the right, he must do so by offering evidence, plaintiff not being required to anticipate defenses relied on.

*265Attorney and Client—Action for Money Collected—Demand—Necessity of Proof.

3. The answer in an action against an attorney for money collected claiming part of the money and justifying possession and detention of the remainder, it is unnecessary for plaintiff to give evidence of demand of payment, which it is obvious would have been idle.

From Multnomah: John P. Kavanaugh, Judge.

This is an action by H. H. Caples against John Ditch-burn for money had and received. From a judgment of nonsuit plaintiff appealed.

Reversed and remanded.

For appellant there was a brief over the name of *Messrs. Jenkins & Crawford,*with an oral argument by *Mr. B. B. Crawford.*

For respondent there was a brief over the names of *Mr. J'oJm Ditchburn*and *Mr. Carl M. Mack,*with an oral argument by *Mr. Ditchburn, in pro. per.*

Department 2.

*

On necessity of demand as a condition of action to recover money collected by an attorney, see note in 28 L. R. A. (N. S.) 626. Reporter.

Opinion

Per Curiam.

The plaintiff appealed from an involuntary judgment of nonsuit and the only question for decision is whether there was enough evidence to take the cause to the jury.

It is alleged in the complaint that the plaintiff obtained a judgment for $275, with costs and disbursements, in an action in which the defendant acted as his attorney; that the defendant collected the full amount of the judgment; and that the defendant has failed, after demand made, to deliver to the plaintiff the amount collected, less attorney’s fees agreed upon.

The answer avers that a barge load of wood, which the plaintiff had agreed to deliver to the defendant, was attached and that

> *266“it was agreed by and between this plaintiff and this defendant, together with Mr. A. Hansen, an attorney at law, authorized to and practicing in the state _ of Oregon, to bring an action to recover the possession of the said wood * * it being understood and agreed that the defendant would pay to the plaintiff, the sum of $1.75 per cord for all wood recovered, or found by the court or jury to have been taken off the barge * * that there was to be no other or further consideration for legal services or otherwise”; that pursuant to the agreement an action was commenced “and it was found that 110 cords of wood had been taken; that the said wood was not recovered, and that the defendant thereupon became indebted to this plaintiff in the sum of $192.50; that it was further understood and agreed, that this defendant should not pay the same, and that the same should not be due and owing, until the said wood or its value was recovered by this defendant; that on or about the 20th day of May, 1915, this defendant recovered the value of said wood, and became indebted to this plaintiff, in the sum of $192.50; that thereafter, this defendant as an attorney at law, advised and consulted to and with the plaintiff, in regard to various matters of business and appeared as an attorney at law in certain court proceedings, of the reasonable value of $10, leaving a balance owing to plaintiff of $182. *’ ’*

The answer contains another separate defense which is to the effect that two brothers of the plaintiff were indebted to the defendant and in consideration of the defendant agreeing to postpone that indebtedness the plaintiff stipulated that the moneys due him from the defendant “need not and should not be paid or become due until a final adjustment between the brothers themselves and this defendant”; and “that there has been no final settlement or adjustment between the said brothers and this defendant and that said sum of $182 is not yet due from defendant to plaintiff herein.”

*267Aside from denials, the reply admits that an action was prosecuted for the recovery of the wood, or its value, taken from the barge and alleges that it resulted “in the judgment mentioned in plaintiff’s complaint herein. ’ ’

The plaintiff offered, and the court received without objection, a certified copy of the judgment which had been obtained by the plaintiff together with a satisfaction thereof. The plaintiff was then sworn and testified that he had had a conversation with the defendant “in connection with this action against Mc-Crum and others in regard to collecting the judgment, and he told me that he had collected the full amount of the judgment.” The. plaintiff declined to offer any further evidence and the court then granted an involuntary judgment of nonsuit.

1. The gist of the complaint is that the defendant as the attorney for plaintiff collected money on a judgment held by the plaintiff. By his answer the defendant admits that he is an attorney. The plaintiff alleges that he obtained a judgment for the wood received from the barge; and a fair construction of the answer authorizes the statement that the defendant alleges and therefore admits that such a judgment was rendered. Moreover, a certified copy of the judgment proves that it was in fact obtained. The certified copy of the satisfaction of the judgment is evidence that John Ditch-burn collected the amount due on the judgment; the testimony of the plaintiff to the effect that the defendant told the witness “that he had collected the full amount of the judgment” is additional evidence that the defendant made the collection; and the allegation in the answer “that on or about the 20th day of May, 1915, this defendant recovered the value of said wood” is an express admission that he did in truth collect the *268amount of the judgment. But the defendant insists that there is no evidence of his employment as attorney. Assuming that plaintiff’s right of recovery is dependent upon the fact of the employment of the defendant as attorney there is nevertheless some evidence of such employment in addition to the inferences that may be drawn from the averments found in the answer. The satisfaction of the judgment is signed thus: “John Ditchburn atty for Plaintiff H. H. Caples. ’ ’ The Code distinguishes between ‘ ‘ attorney ’ ’ and “counsel,” for Section 1074, L. O. L., reads thus:

> “An attorney is a person authorized to appear for and represent a party, in the written proceedings in any action, suit, or proceeding, in any stage thereof. An attorney, other than the one who represents the party in the written proceedings, may also appear for and represent a party in court, or before a judicial officer, and then he is known, in the particular action, suit, or proceeding, as counsel only, and his authority is limited to the matters that transpire in the court or before such officer at the time.”

Another provision of the Code, Section 1083, subdivision 2, so far as it is material here, defines the authority of an attorney as follows:

> “An attorney has authority,— * * 2. To receive money or property claimed by his client in an action, suit, or proceeding, during the pendency thereof, or within three years after judgment or decree, and upon the payment or delivery thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment or decree.”

2. There was evidence tending to show that the plaintiff owned a judgment and that the defendant as attorney collected the money due on the judgment. It is admitted that no part of the moneys collected has been paid to the plaintiff. In the absence of an admission *269by the plaintiff or evidence by the defendant that the latter owned part of the sum collected the presumption would be that the plaintiff owned all of it. The plaintiff admits, however, that a portion of the moneys collected belongs to the defendant. If the defendant would reduce the amount claimed by the plaintiff or if he would postpone the right of the plaintiff he must do so by offering evidence. The plaintiff was not obliged to anticipate the defenses relied upon by the defendant.

3. Although the complaint alleged that a demand was made upon the defendant and the latter admitted at the trial that no moneys have been paid to the plaintiff, no evidence was offered to show that payment had been demanded of the defendant. The defendant, however, by his answer claims ownership of part of the moneys and justifies his possession and detention of the remainder, and it is obvious, therefore, that a demand would have been a mere idle ceremony. The pleading interposed by the defendant rendered it unnecessary for the plaintiff to offer evidence of a demand: *Rosenau*v. *Syring,*25 Or. 386, 389 (35 Pac. 845); *Cox*v. *Delmas,*99 Cal. 104 (33 Pac. 836); *Burrows*v. *McCalley,*17 Wash. 269 (49 Pac. 508); *Ott*v. *Hood,*152 Wis. 97 (139 N. W. 762, Ann. Cas. 1914C, 636, 44 L. R. A. (N. S.) 524); 6 C. J. 706.

The plaintiff offered, sufficient evidence to entitle him to have his claim submitted to the jury. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and Remanded. Costs Retaxed in Part.

Mr. Justice Harris sat for Mr. Chiee Justice McBride.

Mr. Justice Burnett sat for Mr. Justice Bean.

*270(169 Pac. 000.)

On respondent’s motion to retax costs.-

Motion sustained in part.

*Mr. Carl M. Mack,*for the motion.

*Mr. John Ditchburn, in pro. per.*

*Messrs. Jenkins & Crawford, contra.*

Allowed in part January 29, 1918.

Motion to Betas Costs.

Department 2.

Opinion

Pee Curiam.

The respondent has objected to the cost bill filed by the appellant. It is not necessary to discuss the objections in detail; but it will be sufficient to observe the requirements of Section 570, L. O. L., as construed in *Macleay Estate Co.*v. *Miller,*85 Or. 623 (167 Pac. 575), and we therefore make an itemized statement’of the costs and disbursements now allowed by us as follows : Transcript, $2; printing abstract and briefs, $41; clerk’s filing fee, $15; trial fees, $6; costs, $15.

On the authority of *School District No. 30*v. *Alameda Construction Co., ante,*p. 132, the claim of $1.50 for “verification of the cost bill and two affidavits” is disallowed. Motion Sustained in Paet.

*292On petition for rehearing.

Denied.

*Mr. Loyal H. McCarthy*and *Mr. J. LeBoy Smith,*for the petition.

*Messrs. Fulton & Bowerman, contra.*