ON THE MERITS February 1, 1940. 98 P.2d 481. *Page 48 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 49 OPINION This action grew out of what was found by the trial court to be a partnership agreement in the ownership and operation of a lease on certain lots in Boulder City, Nevada, stages, automobiles, equipment, machinery, appliances, furniture, and fixtures, together with the buildings on said lots, for a period of five years. On the 25th of October 1935 plaintiff, who was the owner of said properties and business, agreed to sell to the defendants, who agreed to purchase, an undivided one-half interest in same, for the price of $6,000, payable, $300 in cash, and a promissory note for $5,700 due in *Page 50 five years from date thereof. In addition to this consideration defendants agreed to devote their entire time to said business in the management and conduct thereof.
A written agreement was executed by the plaintiff and defendants on that date. Plaintiff alleged in his complaint that the written agreement, due to mutual mistake, contained only a part of the arrangement entered into, and alleged the particulars in which it failed to state the full understanding of the parties. Plaintiff, becoming dissatisfied with the defendants' management of the business, and contending that the written agreement was incomplete as aforesaid, served upon defendants a notice of rescission of the agreement of sale of the undivided one-half interest in said properties and business, a notice of dissolution of the partnership agreement, demanding an accounting and payment of any sum of money found due plaintiff upon such accounting, offering therein to return in addition to the note, any and all benefits received under and by virtue of the agreement, and to restore the status quo of the parties.
Upon defendants failing to comply therewith this action was instituted in which such relief is sought. Defendants answered; the action was tried to the court; a decision was rendered on March 24, 1939, and counsel for the defendants were directed to prepare findings. Thereafter defendants served upon plaintiff proposed findings of fact and conclusions of law. Prior to the entry of judgment and before findings of fact and conclusions of law were signed, the court permitted plaintiff's counsel to withdraw as his attorneys. Thereafter the present attorney, who represents plaintiff on appeal, appeared specially for him in the court below and made a number of motions, which were all denied by the court. Findings of fact and conclusions of law were signed and filed by the court.
The court found, inter alia, that an agreement of partnership, partly oral and partly written, for the term *Page 51 of five years from October 25, 1935, had been entered into between the parties and that plaintiff dissolved the same after nineteen months in contravention of the agreement, and found that no damages resulted from such improper dissolution; that in order to adjust the accounts between the parties duly found, and effect an equitable division of the joint property and assets, a sale of such property must be made by the receiver theretofore appointed. Judgment was entered accordingly.
Plaintiff noticed his appeal from the judgment; from the order of the court denying his motion for modification of the judgment; from the order granting defendants' motion for a modification of the judgment; from the order denying plaintiff's motion for a continuance of sale, and from the order denying his motion for a new trial. We will continue to refer to the parties as they appeared in the court below.
Forty-four errors have been assigned. We will discuss only such of these assignments as have been fairly argued.
1-3. The first of these is that the court erred in denying plaintiff's motion to vacate the stipulation made by counsel for the parties, agreeing that the accounting reported by the referee was incorrect and that certain specified figures constituted a correct accounting. There is nothing unusual in such a stipulation of fact dispensing with formal proof. On the contrary, it is common practice to dispense with such proof by an agreed statement of facts. Stipulations of this kind, as said in City of Los Angeles v. Oliver, 102 Cal.App. 299, 283 P. 298,311, "have always been regarded by the courts as establishing the facts stipulated and as taking the place of evidence with regard thereto." Sec. 23 Cal. Jur. p. 816 and cases cited in note 14. The practice is encouraged by the courts. 60 C.J. 58. But counsel for plaintiff asserts that his client's former attorneys did not have authority to enter into the stipulation. In this he *Page 52 is mistaken. As a general rule an attorney has implied authority to bind his client for the management and conduct of the cause while it is pending before the court for determination. This general rule and the manner in which such authority can be exercised are seen in our statute. Sec. 600 N.C.L. It provides in part: "An attorney and counsellor shall have authority: First — To bind his client in any of the steps of an action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise. * * * "
The stipulation in this case, pursuant to the statute, was filed with the clerk. Stipulations by respective counsel as to evidence to take the place of formal proof have always been common practice.
4. As stated by Mr. Thornton, in his work on Attorneys at Law, vol. 1, pp. 476, 477: "The implied power of an attorney to make admissions of fact on behalf of his client within the scope of his authority in conducting litigation, is beyond question. Admissions when so made by an attorney bind the client and dispense with the necessity of proof." The following authorities support the rule stated: Lewis v. Sumner, 13 Metc., Mass., 269, 272; Garrett v. Hanshue, 53 Ohio St. 482, 42 N.E. 256, 35 L.R.A. 321; Holmes v. State, 82 Neb. 406, 118 N.W. 99; Harrill Bros. v. Southern R. Co., 114 N.C. 542, 57 S.E. 382; Richmond v. Sangster, Tex. Civ. App., 217 S.W. 723; Heinze v. Industrial Commission,288 Ill. 342, 123 N.E. 598; Christy v. Atchison, T. S.F. Ry. Co., 8 Cir., 233 F. 255; 5 Am. Jur. 314; 7. C.J.S., Attorney and Client, sec. 100, pp. 919, 920, 921; Weeks on Attorneys at Law, p. 450.
The court in Lewis v. Sumner, supra, emphasized the importance of upholding agreements of this kind. Shaw, C.J., speaking for the court, said: "The importance of upholding agreements and concessions like the present, between attorneys and counsel of litigating parties, is greater than it might seem at first blush, and is *Page 53 enhanced by our present practice. In most cases of controverted facts, many facts are embraced in the issue, which are not really in dispute between the parties; but each must be prepared to prove all the facts necessary to his own case, unless he can previously obtain a concession from the adverse party, in a form which he can rely upon, at the trial. It is, therefore, a wise, useful and beneficial practice, resorted to by those who are most careful in preparing causes for trial, and a practice well deserving to be encouraged by the courts, for the parties, by their attorneys, to obtain and give mutual concessions, in writing, of all the material facts, not intended to be controverted, and so narrow the litigation to the precise matters in controversy. It saves expense, avoids surprise and delay, and often prevents the loss of a good cause, by an expected call for proof, which could easily have been obtained, if it had been anticipated that such fact would be called in question. This practice of admitting facts is the more necessary, since the disuse of special pleading, which was designed, and to some extent had the effect, to narrow the issue on record to some one or a few questions of fact. This consideration renders it important to hold, that a litigant party shall not be permitted to deny the authority of his attorney of record, whilst he stands as such on the docket. He may revoke his attorney's authority, and give notice of it to the court and to the adverse party; but whilst he so stands, the party must be bound by the acts of the attorney."
In Garrett v. Hanshue, supra, the court, after a review of the authorities held [53 Ohio St. 482, 42 N.E. 260, 35 L.R.A. 321]: "In view of these authorities, we are of opinion, and so hold, that an attorney of record has ample power to do on behalf of his client all acts, in or out of court, necessary or incidental to the prosecution, management, or defense of the action, and which affect only the remedy, and not the right, and that this includes the power to waive objections to evidence, and enter into *Page 54 stipulations for the admission of facts on the trial."
In the case before us the stipulation did not affect a substantial right. It went only to the mode of proof. Within the meaning of the statute it was but a step taken in the procedure by which the cause of action was litigated. Consequently the authorities cited by appellant to the effect that the rule applies only to procedure need not be discussed. State v. Cal. Min. Co., 15 Nev. 234; Scheeline Banking Trust Co. v. Stockgrowers' Ranchers' Bank, 54 Nev. 346, 16 P.2d 368, cited by him are not in point. Moore v. De Bernardi, 47 Nev. 33,213 P. 1041, 220 P. 544, is not contrary to the views expressed.
We have considered the motion to vacate, and affidavit of plaintiff in support thereof, attentively, and are satisfied that the trial court would have abused its discretion if it had granted the motion. There was no showing of mistake, fraud, collusion, accident, surprise, or some ground of like nature. There is no claim that the stipulation was untrue in any respect, or that a result more beneficial to plaintiff would be obtained if an accounting is had. The burden of the claim is that plaintiff's counsel were without authority to enter into the stipulation. We hold to the contrary.
The errors assigned concerning the promissory note are without merit, and received but a passing notice in the opening brief. It is contended that the judgment should be reversed because plaintiff's rights in the note were not adjudicated. At the trial the note for $5,700 was surrendered to the court for such disposition as it might direct. The court found against plaintiff on all points on which he predicated his offer to surrender the note to defendants, namely, that the agreement of partnership be rescinded and that defendants be required to reconvey to plaintiff everything attempted to be conveyed to defendants. The court found that a partnership had been consummated and that the note had been given as a part of the purchase price for an undivided *Page 55 one-half interest in the business and property conveyed; that the note was taken by plaintiff as payment and not as evidence of indebtedness. The note is still the property of plaintiff but his rights in it have been fully adjudicated.
Error is claimed by plaintiff on account of the action of the court in denying his motion to vacate orders and to strike proposed findings of facts and conclusions. The motion to vacate was made upon the ground that the orders made on March 24, 1938, when the court rendered its decision on the merits and the proposed findings of facts and conclusions of law prepared pursuant thereto, were premature because the court had not rendered its final decision. On the hearing of the motion the deputy clerk identified the minutes of March 24, 1938, to be as follows: "It was by the court ordered that judgment be entered in accordance with the written judgment to be filed herein. Counsel for defendants directed to prepare findings." The deputy clerk also identified the minutes of July 8 to be as follows: "The court set the 16th day of September, 1938, within which to file objections to proposed findings, and to submit also his substituted findings." The deputy clerk also testified that on said March 24 she had taken down in shorthand certain statements of the court and had made a transcript thereof, which transcript was introduced in evidence. The deputy clerk further testified that said transcript contained only a partial statement of what the court said, and that she did not remember what else he had said. Further hearing of said motion was continued to October 5, 1938. In the meantime, on October 3, 1938, the court caused to be entered in the minutes its further order respecting the statement of the court on March 24, 1938, prefacing said further remarks by the following: "On the 24th day of March, 1938, the court rendered an oral decision in the above entitled matter, and a minute entry thereof was thereafter made; that said minute entry is uncertain in its terms and that *Page 56 it is not the true or correct statement of what occurred; the court, at this time, upon its own motion ordered that said minute entry in said cause be amended so as to read as follows:"
5, 6. It is contended that the court altered its decision in a substantial way. We think, however, that the court merely corrected the record so as to make it speak the truth as to what was actually decided. The court had the inherent power to do this and it was its duty to do it. Lindsay v. Lindsay, 52 Nev. 26,280 P. 95, 67 A.L.R. 824; Smart v. Valencia, 49 Nev. 411, 248 P. 46; Silva v. Second Judicial District Court, 57 Nev. 468, 66 P.2d 422; Dwight v. Hazlett, 107 W. Va. 192, 147 S.E. 877, 66 A.L.R. 102, and authorities cited; 14 Cal. Jur. 994.
7. The court's statement that the minute entry was uncertain in its terms and not the true or correct statement of what occurred, must be taken as true. Moreover, it is corroborated by testimony of the clerk that the said transcript contained only a partial statement of what the court had said and that she did not remember what else he had said. In any event, a trial court in rendering its oral decision is not bound by what the clerk or stenographer has taken down, but may rely on its memory as to what was actually decided. It may, in the exercise of its discretion, refresh its memory in this respect from any source it deems reliable. District court rule XLV has no application in this case. Lindsay v. Lindsay, supra. The power to change a decision or judgment rests, of course, on different principles.
8. The complaint made of the refusal of the trial judge on the hearing of the motion at the behest of plaintiff to be sworn and testify and to call in another judge to hear the motion, needs no attention. The court subsequently offered to do both, and counsel objected. Certainly that obviated the cause of complaint, if there was any.
9-11. A great deal of complaint is made by the plaintiff concerning the action of the trial judge on the further hearing of the motion, in overruling his objections *Page 57 to the introduction of evidence; in rejecting the affidavits of plaintiff, his attorney and others; in compelling the attorney to be sworn and answer questions by the court as to averments in his affidavit under threats of commitment for contempt. We have read these affidavits. They had no relevancy to the motion to strike the orders and proposed findings of fact and conclusions of law. The court was therefore justified in refusing to permit them to be filed. Furthermore, they contain matters which bear an implication that impugns the motive and good faith of the trial court as to its action on October 3 in correcting the record of its decision. The attorney was an officer of the court and answerable to it for contempt, if such was the fact. Consequently the court was acting within its authority in compelling him to answer questions under oath as to such matters, which, to say the least, were dubious in their import. The trial court was patient and forebearing throughout and eventually gave the attorney the benefit of the doubt. Moreover, the proceedings in this respect had no bearing on the ground of plaintiff's motion. It was properly denied, and plaintiff had no cause for complaint in the rulings of the court in connection therewith. Neither had he any cause for complaint of the ruling of the court denying his motion for additional and substantial findings.
Another assignment discussed is leveled at the order of the court in denying the motion to enjoin Harold M. Morse, one of the defendants' attorneys, from appearing as an attorney for defendants. The motion was made on the ground that said Morse had previously represented the adverse interests of the plaintiff respecting the subject matter of this action. It appears from the hearing of the motion that some time prior to the commencement of the action plaintiff consulted Morse concerning the subject matter of this litigation, leaving with him for his inspection the written agreement and some accounts with the defendants, and paid him $20 in cash for filing fee, if an action was instituted. Later *Page 58 plaintiff became dissatisfied with Morse's attitude and terminated the employment. Morse returned the $20 to plaintiff and later accepted employment from the defendants to act as one of their attorneys in the action, and did act as such in filing defendants' pleadings, throughout the trial, and on appeal.
Plaintiff's affidavit was admitted in evidence on the hearing on the motion, and Harold M. Morse, Alfreda Noland, one of plaintiff's former attorneys, and plaintiff testified on the hearing. The motion was submitted, the trial court rendered an oral opinion thereon, and made the following finding: "My finding is that he (Morse) acted with consent of plaintiff, which gave him the right to act; that the consent of plaintiff was given through counsel, with the benefit of the knowledge and experience of counsel, and that as far as appears to the court, in the giving of such consent his rights were fully safeguarded. The motion is denied."
This finding has substantial support in the foregoing testimony. We will not here state or summarize it. To do either would prolong this opinion unnecessarily.
12, 13. It is well settled that an attorney who is a recipient of the confidence of a client concerning a certain matter, is thereafter disqualified from acting for another party adversely interested in the same general matter. Annotations 51 A.L.R. 1307; Wutchumna Water Co. v. Bailey, 216 Cal. 564,15 P.2d 505; 1 Thornton Attorneys at Law; Boyd v. Second Judicial District Court, 51 Nev. 264, 274 P. 7. Most of the authorities presented by plaintiff are in accord with this general rule. The facts of this case, however, take it out of its operation. They show a waiver on the part of plaintiff of the privilege which, under the general rule, is secured to a client whose confidence has been given to an attorney. The privilege so secured may be waived. In re Cowdery, 69 Cal. 32, 10 P. 47, 58 Am. Rep. 545; Weidekind v. Tuolumne County Water Co., 74 Cal. 386, 19 P. 173, 5 Am. St. Rep. 445; Michel v. McKenna, 199 Wis. 6008, 227 N.W. 396; Harvey v. Harvey, *Page 59 202 Wis. 553, 231 N.W. 580; Hopkins v. National Bank of Norman,115 Okla. 196, 242 P. 532, 533; 1 Thornton on Attorneys at Law, secs. 179, 182; 7 C.J.S., Attorney and Client, sec. 48, p. 829.
The waiver may be either express or implied. In Harvey v. Harvey, supra, it was deemed waived by conduct. That a waiver could be made was recognized in the case of In re Boone, C.C., 83 F. 944, 952, and in Peirce v. Palmer, 31 R.I. 432, 77 A. 201,209, Ann. Cas. 1912B, 181, the court quoted approvingly from the former case as follows: "This is the privilege of the client, and not of the attorney, and, unless the client sees fit to waive his privilege, the obligation solemnly rests upon the attorney to keep his lips forever sealed, and to preserve inviolate the confidence reposed in him."
14, 15. Under the facts of this case there was both an express waiver and an implied waiver. As previously pointed out, the court found on substantial evidence that Morse acted with the consent of plaintiff given through the latter's counsel. This was an express waiver. No objection or protest was ever made by plaintiff at any stage of the proceedings, during the trial or after decision, or at all, until his present attorney filed the motion to enjoin Morse on June 14, 1938, over a year after Morse appeared in the case as one of the attorneys for defendants. This conduct was in itself a waiver. A party ought not to be permitted to remain quiescent over a long period of time looking for a favorable decision, and, if unsuccessful, obtain a reversal upon a mere charge of collusive fraud between his own attorneys and the attorney on the other side, by which the latter was permitted to appear against him in the action. If it be argued that he was in the hands of his attorneys it may be noted that plaintiff, on the motion to enjoin, testified that he mistrusted his former attorneys from the time he had the conversation with them about Morse representing defendants. Whether an attorney has violated his professional duty by changing sides in a particular case, which is the charge here, depends upon the *Page 60 facts of the particular case. Logan v. Logan, 97 Ind. App. 209,180 N.E. 32. Consequently, we have less hesitancy in holding a waiver in this case, because the likelihood that plaintiff sustained injury is extremely remote. He does not allege or show it, but stands on the bare legal proposition that he is entitled to a new trial because of Morse's former relations with him. There is nothing in any of the evidence adduced on the hearing to indicate that he was prejudiced. The evidence adduced on the trial is not before us, but the court found that in giving his consent through counsel, his rights were fully safeguarded. The trial court was in a position to know whether he suffered any prejudice on account of his former relation with Morse. The motion was properly denied and there is no merit in any of the objections taken by plaintiff to the rulings of the court on the hearing of the motion.
16. It is contended by plaintiff that the court erred in denying his motion for leave to file an amended complaint after its decision had been rendered. This was necessarily addressed to the sound discretion of the trial court. As stated in McCausland v. Ralston, 12 Nev. 195, 28 Am. Rep. 781: "This court has always been quite liberal in sustaining the action of the lower courts in allowing or refusing amendments to pleadings * * *."
17. The furtherance of justice is more nearly accomplished by this policy. It is not seen why in this case there should be any departure from that course. It is not contended that the proposed amendment was to conform to proof, which is often deemed a sufficient reason for amendment. A comparison of the proposed amended complaint with the original reveals that a substantial change in the cause of action was sought. In the original complaint a rescission of the partnership agreement was asked, together with a dissolution of the partnership, while in the proposed amended complaint a reformation of the partnership agreement was sought. A different issue would have thus been injected into the action. It *Page 61 is obvious that a new trial would have been necessitated without fault upon the part of defendants. Under such circumstances the motion was properly denied. Nevada Mining Exploration Co. v. Rae, 47 Nev. 173, 218 P. 89, 223 P. 825.
18. The granting of defendants' motion for a modification of the judgment of which plaintiff complains, was within the sound discretion of the court.
19. The plaintiff made a motion for modification of the judgment which was denied by the court. In support of this assignment it is asserted that the judgment is void and the order of sale contained therein is likewise void. There is no merit in the claims. The judgment and order are not void. The findings sustain the judgment and order and we must presume that the evidence sustains the findings.
20, 21. Error is assigned to the action of the court in denying plaintiff's motion for a continuance of the sale of all the properties belonging to the partnership, which was ordered in the judgment. There was no error in this because no sufficient ground for such continuance was made to appear to the court. The question raised by plaintiff as to the court fixing a time for hearing the receiver's petition for an order confirming his account and return of sale of said properties, has become moot because of a stay granted by this court in that matter. Gottwals v. Rencher et al., 60 Nev. 35, 92 P.2d 1000.
No error, at least no prejudicial error, among the forty-four assigned, appears. If any, they are of an extremely technical character.
The judgment and orders appealed from are affirmed.