, 1892-06-08
FOR ATTORNEY FEES
An Action Brought to Recover
Money for Services Rendered.
The Judgment of the Lower Court
Affirmed Upon Certain COndi-
tiOns, to be Performed by Re
sPOndent within Thirty Days.
CONTINUED from Tuesday, J

two months before the trial, the defendant
filed motion in the superior court, asking
that the itemized account be made more def
mite and certain, but did not call said motion
up for hearing prior to the commencement
of the trial of said action; it was taken VI
at the time referred to during the progress
of the trial. The affidavit then filed
showed that a portion Of the plaintiffs
books which contained the iteInizd state
ment of the account had been lost at Port
land, Oregon, and the balance destroyed al
the Seattle fire; and that he was unable to
furnish the itemized account; and there
upon the court OVerruled and denied the
motion Of the defendant for a further item.
lied statement.
The clause in the bill of particulars re-
lating to this cause Of action. reads as fol
lows:
"May IA to August 1, 1890. Advised in
all road matters, cash entry land cases,
helped make briefs for Washington U. S.
land department. advanced money for tele-
graph and express, drawing wills and gen.
eral work as his attorney, 50 10000"
The May 14th referred to was the year
1884 1t was mentioned elsewhere in the
bill of item with the year stated, and also
in the contract. The defendant seems to
have understood it to mean May 14th, 1884,
as he made no special point over the omis-
sion Of the year in the clause, and no May
l4th or any other year was anywhere given.
The plaintiff testified he did not have the
contract when he made out the account,
and he had forgotten its date; that he had
supposed it was of an earlier date. He ad-
mltted on crOss-examinatiOn that he could
not recover for any work under this cause
of action done prior to December 30th
1884, the date of the contract, and the court
instructed the jury thai he could not re-
cover for it. No points made that he was
allowed to prove the rendering of any such
services after June 1st, 1888, the time al
legged in the complaint.
The plaintiff testified he had acted as
Parker's attorney generally in all of his
business since said time, that some of it
was in relation to road matters; that Par
ker owned good deal of land and was in
terested in good many roads, either in
getting them established or in opposing the
same, or in getting a change of location
That he was contentious man, and had
many difficulties with various people in
his dealings. A good deal of testimony
was given by the plaintiff as to the charac-
ter and amount of the services rendered
by the plaintiff for the defendant, such
services being in the way of counsel, ap-
pearing before the o. s. land Office, and
the board of county commissioners, in
matters in which Parker was either prose-
cutting or defending, and drawing various
legal docuni ients for him. The plaintiff
could not gi any of the dates other than
the years, and the seasons of the years. in
SOlllO 4nobdl4GCps Ll0 JOnbllHu budb bub u6~
fendant was in his Office on such business
almost daily, and often three or four times
day, that it occupied a good portion of
his time, that he also kept a clerk, and
that the defendant monOpolized a good
portion Of his clerks time. He testified
that his said services, for which he sought
10 recover IN his second cause of action
were worth at least five hundred dollars a
year. A number of other witnesses were
called who cOrrObOrated the plaintiff in
his testimony as to the character and
amount Of such work performed for the
defendant. Several attorneys were called,
who testified that they heard the testimony
regardidg such services, and that said ser
vices were worth $500 or more per year.
All OF this testimony was objected to by
the defendant on the grounds that it was
incompetent and immaterial and because
the plaintiff had failed to comply with the
statute in regard to furnishing an itenized
account.
The appellant contends that that the said
section of the code is distinct in its proVis-
ions, that unless an itemized account be
furnished the party shall be precluded
from giving evidence thereof. That no
authority is given the court to excuse the
party from furnishing an itemized account
and that the effect of the statute is to pre-
clude the party from giving evidence in
support of the cause of action, unless he
has furnished the items of the account
when required by the adverse party. That
the only authority the court has is to order
further account when the one delivered is
defective. That the court in this case had
the power to order further account not
only by requiring the plaintiff to verify it.
but also to give fully the items thereof, but
he insists that under the section of the
statute referred to, the court had no right
or authority to excuse the plaintiff upon
any kind OF showing he might make, from
furnishing items ofthe account upon which
this cause of action was based. He further
insists that the court erred in admitting the
evidence in support of the said second
cause of action, and particularly that part
OF it relating to cOunseling and advising
defendant, for the reason that where an at
torney Is performing service for a client
under contract in certain business, such as
plaintiff was performing for defendant in
this case, that the attorney is not entitled
to charge for consultation and advice un-
less he is able to show that the defendant
expressly promised to pay therefor, or that
some special agreement was made which
entities the attorney to charge for such con-
sultation and advice.
The respondent contends that appellant
is not in position to avail himself of the
objection that the itemized account was
not verified, as what purpOrted to be a
verified copy of the account was served up-
on him as is shown by the record within
the time require by law, and no objection
was made because of the lack of fVerihcation
His motion was only to require the plain
tiff to file an additional itemized account
and, in response to this motion, the plain
till made the showing Of facts, by affidavit,
to the effect as aforesaid, WhereupOn the
court denied the motion. He contends
that the section of the code aforesaid is
directory only, and as it was impossible
for the plaintiff to furnish an itemized &C
count, it would be unreasonable to contend
kNnmN = -
be precluded from giving evidence regard
ing his account.
The bill of items was insufficient against
a good objection, to admit of the proof
which was offered. 1t is true that the
court has a reasonable discretion in the
premises, (see Ferry VS.. King Co., 2 Wash.
337) and it was so held under very similar
statute by the supreme court Of Colorado.
Robbins VS.. Butler, 13 Col. 496.
But the plaintiff could have furnished a
more specific statement than the one he
did provide. Upon his cross examination
he was able to give the names of opposing
parties in a number of instances with
whom his client had legal controversies
wherein the plaintiff was called upon to
act which were not included in the writ
ten contract, and came within the second
cause of action pleaded He could tell oil
various matters wherein he had given pro
fessional advice to the defendant and was
able to give more particular description
of the business generally, and he should
have furnished as specific statement o.
such matters in his bill of par
ticulars as he could have furnished
under the circumstances. Because tn,
plaintiff could not give the items with the
particularly which good practice and
due regard for the rights Of the defendan
would require where the same can be given
would not excuse him from giving the bes
statement he was able to give. The de
fendant was entitled in the bill of particu
lars to have all the information the plain
tiff could furnish him with. After such
statement is furnished where without th
fault Of the plaintiff he should be unabl