I dissent, and adhere to the opinion heretofore rendered in Department. The prevailing opinion reverses the judgment of the trial court upon the flat statement that the agreement between Highton and Baldwin was, that Highton's fee for services rendered in the Ashley litigation should be fixed by Mr. Baldwin and Mr. Unruh; and it is said: "The complaint as to this matter should have counted upon the agreement, as alleged in defendant's answer and as proven at the trial, together with an allegation that said agreement had been repudiated by defendant, or that he had refused to act under it in fixing the compensation. As the complaint now stands, the probata and allegata do not at all correspond." Such a declaration can only be justified upon a showing that the evidence in the case without conflict establishes the agreement which was set up by defendant, Baldwin, as a special defense to the action. But not only is this not established without conflict, but the evidence of Unruh and Baldwin tending to establish it is squarely denied by Mr. Highton, the third party to the agreement, and absolutely repudiated by him. Mr. Highton thus testifies: "There was no understanding that I should receive as compensation in that case what Mr. Unruh and Mr. Baldwin should name as a fee." Still further, Mr. Highton testifies that, so far from agreeing that Mr. Baldwin and Mr. Unruh should fix his fee, the sole conversation upon the matter occurred when Mr. Unruh asked him to name the amount of his fee, and he replied: "You and I can fix that without any trouble at all at any time."
The complaint is drawn upon a cause of action consonant *Page 530 with the testimony offered by Mr. Highton, — namely, that he was employed, that his fee was not fixed, and that in the course of the conversation the statement above quoted was made. The special defense was this agreement testified to by Mr. Unruh and Mr. Baldwin and flatly denied by Mr. Highton. The jury evidently accepted the evidence of plaintiff. I cannot comprehend, therefore, in the face of this evidence and the finding of the jury, how this court can say, not only that the agreement pleaded by Baldwin was established, but that the complaint should have charged upon an agreement which Mr. Highton absolutely denies was ever made. Moreover, it is to be observed that this special defense is a highly technical one, designed to forbid an inquiry into the actual value of Mr. Highton's services, upon the theory that he had absolutely left the fixing of those services to his client and to his client's manager, and that they had not fixed them. Mr. Baldwin repeatedly asserted that he owed Mr. Highton nothing. He so stated to many people, and testifies, "I should have stated that to any one." Mr. Highton, or his assignee, under the evidence which they offered, were justified in commencing the action upon a quantum meruit, and it was open to Mr. Baldwin to urge against the demand any offsets or counterclaims which he had against his attorney.
The instruction which is attacked is considered in the Department opinion heretofore rendered. To what is there said, however, it may be added that, under the theory put forward by the special defense, it was still the duty of Mr. Unruh and Mr. Baldwin to "fix" the compensation which Mr. Highton should receive. It is uncontradicted by the evidence that at the conclusion of Mr. Highton's services in all these matters he presented to Mr. Unruh and to Mr. Baldwin a statement of those services, and he further testifies that he tried very hard to have an adjustment and settlement with them. Mr. Baldwin (not denying the presentation of the statement of services from Mr. Highton) testifies that Mr. Highton repeatedly asked him for money, and that he refused to give it to him; never "upon the ground that Mr. Unruh and I would fix his compensation, but I refused on the ground that he was owing me." This cannot be construed into a "fixing" of Mr. Highton's fee in the Ashley case for many reasons: 1. Because the fixing of a fee means something more than a secret *Page 531 and undisclosed determination as to what value he would put upon those services, which value rested in the mind of Mr. Baldwin alone, and was not disclosed to Mr. Highton. It means the actual placing of a value upon those services and a communication of that value to the other party in interest; and 2. Because Mr. Baldwin does not plead that he ever fixed the fee, but in his answer asserts that he and Mr. Unruh have always stood ready and willing to fix the fee, but have not been requested so to do. It is not extraordinary that Mr. Highton should not have requested them to fix the Ashley fee, when, as above shown and quoted, he distinctly repudiates that there was any such agreement as that set up in the special defense; but it does appear, without contradiction, that he asked for money, and asked for a settlement of the financial matters between him and Mr. Baldwin, and never obtained any response to these requests other than the answer, as testified to by Mr. Baldwin, that he would give him no money, because he owed him nothing. This action was brought nearly a year after the close of the services of Mr. Highton, and after presentation by Mr. Highton to Mr. Baldwin of his account of those services. It was the active duty of Mr. Unruh and Mr. Baldwin, under the very agreement which they have pleaded, to have fixed the value of those services, and their failure and refusal to do so for this long period of time clearly puts them in default, and justifies the prosecution of this action and the verdict of the jury under the instruction given. For, even if the jury could have believed that the agreement was as Mr. Baldwin pleaded it to be, his long refusal and delay, which, as he says, was never predicated upon the fact that he and Unruh were to fix the compensation, warranted Mr. Highton in the belief, and the jury in finding, that the agreement that existed was repudiated by Mr. Baldwin, or, if not repudiated, his failure to take action, when he alone was the only one who could and should have acted, justified Mr. Highton in his resort to a court for the determination of the value of his services. If, therefore, it could be said that the instruction was erroneous, — a proposition which I do not concede, — still clearly, I think, it demonstrated that the error could have worked no injury to appellant.
*Page 532Rehearing denied.
The following is the opinion rendered in Department Two on the 14th of June, 1901, and above referred to: —