Action by R. Fisher against J.H. Lane and another, doing business as the Corvallis Credit Bureau, for statutory fees due plaintiff as a justice of the peace. Judgment for defendants, and plaintiff appeals.
REVERSED. In this case plaintiff, Fisher, a justice of the peace, brings an action against the defendants, Lane and Dobkins, to recover statutory fees alleged to be due to the plaintiff as justice of the peace. From a judgment for the defendants, the plaintiff appeals.
In his first cause of action, the plaintiff sets forth his capacity as justice of the peace and alleges that the defendants were copartners doing business as the Corvallis Credit Bureau, and conducting a collection agency in the city of Corvallis, Oregon. The plaintiff then alleges that between the 1st day of April, 1933, and the 29th day of April, 1935, at the special instance and request of the defendants, he performed services in his capacity as justice of the peace, consisting of filing civil actions in said court, issuing summons, writs and attachments, and executions, setting cases for trial and conducting trials and hearings. He sets forth a list of the cases so filed in exhibit A attached to the complaint, and alleges that by virtue of the services so performed by plaintiff for defendants there became due to the plaintiff from the defendants the sum of $135, no part of which has been paid. He alleges that that amount is now due and owing, and seeks judgment for the same.
The fees claimed in the first cause of action are those which are alleged to have been earned under the provisions of Chapter 86, Oregon Laws of 1933, p. 93, which statute was in effect until amended by Chapter 309, Oregon Laws of 1935, p. 475.
For the second cause of action, plaintiff makes similar allegations, but in it he seeks to recover for fees *Page 441 alleged to have been earned between May 1, 1935, and July 1, 1938, a list of the cases being set forth in exhibit B. Upon the second cause of action he claims the sum of $1,235.25. The fees set forth in the second cause of action are those alleged to have been earned under the provisions of Chapter 309 of the laws of 1935. The itemized statements, exhibits A and B, attached to the complaint, set forth the date of filing, name and amount of the fees in the respective cases.
The defendants answered separately, but the substance of both answers may be covered in a single summary. The defendants deny the allegations of the complaint except the formal ones concerning the official status of the plaintiff and the partnership of the defendants. The affirmative defenses are, as stated by the defendants, "similar in effect." They allege in substance that the plaintiff, prior to the time of filing any cases in the justice court, agreed to waive payment of the statutory fees allowed by law and to release the defendants of all liability therefor, and agreed to accept in full compensation "such sums as defendants realized and received in each individual case for the payment of said case." Under the alleged agreement, plaintiff was not to receive any fees for services to be rendered by him for the defendants as such justice "unless and until defendants had collected and received, by reason of such action, from, or in behalf of, the defendant or defendants in such action so filed with plaintiff, sufficient moneys to cover and pay such respective fee charge of plaintiff therein." It is alleged that defendants accepted such offer and by way of consideration, it is further alleged that the defendants promised and agreed with plaintiff "that they would file with the plaintiff, as such justice of the peace, many *Page 442 such actions which would otherwise be filed elsewhere, and that they would pay to plaintiff from and out of any such moneys so collected and received by them in any such action so filed with plaintiff, sufficient therefor, such contingent fee charge of plaintiff in and for such respective action." It is further alleged that pursuant to the alleged contract the defendants "filed several actions (most of which defendant could have, and would have, filed elsewhere but for such contract), including all those so mentioned and described in" exhibits A and B. It is alleged that the foregoing matters are the same as those of which plaintiff complains in plaintiff's first and second causes of action. It is further alleged in the answer of defendant Dobkins, who was formerly M.L. Lane and is now Mrs. M.L. Driscoll, that the amounts agreed upon have been paid to the plaintiff, that no funds have been realized by defendants in the cases listed in the exhibits to the complaint, that there has been a "complete and final settlement of all sums due the plaintiff pursuant to saidagreement," (italics ours) and that there is nothing due the plaintiff from any of the causes mentioned in the exhibits. The answer of the defendant Lane does not contain the last above mentioned allegation. (It is apparently omitted upon the theory that the plaintiff is bound by the contract alleged in the answers and since the plaintiff has not alleged compliance with that contract or the performance of the conditions on which payment was to depend, the plaintiff could not recover.)
The plaintiff denied the new matter set forth in the respective answers. In so far as the answers of the defendants differ, the defendants being partners, we shall for the purposes of this opinion assume that both *Page 443 defendants have joined in those allegations of the answers most favorable to their position.
The case was tried by the court without a jury, four different circuit judges participating in the proceedings at different stages thereof. The demurrers of the plaintiff to the answers of the defendants were overruled. After the filing of replies denying the affirmative allegations, the plaintiff moved for judgment on the pleadings for the reason that the answers filed failed to state a defense to plaintiff's complaint. The motion was denied. After trial, the court made and entered general findings for the defendants. Judgment for the defendants was thereupon entered and plaintiff appeals. A purported bill of exceptions and transcript of the testimony appears in the files, together with an order of the court to the effect that the proposed bill, having been tendered too late, was disallowed. Under these circumstances, this court will only consider whether the respective answers constituted valid defenses to the plaintiff's complaint and are sufficient to support the general finding in favor of the defendants.