(dissenting). — I feel that I must dissent from the conclusion reached by the court in this case, and vote in favor of an absolute reversal, upon a ground very strenuously urged by the appellant, but, I think, not made clear and fairly met in the foregoing opinion. The second cause of action was as follows:
“That on the first day of June, 1888, at Walla Walla county, defendant was justly indebted to plaintiff in the sum of $2,000, for professional services rendered said defendant at liis request, by plaintiff, as an attorney and counselor at law, between June 1, 1884, and June 1, 1888 in counseling and advising said defendant in relation to his property and business affairs, and for drawing papers and contracts for said defendant, and drawing said defendant’s will, which said services were rendered upon an open, mutual arid current account and were reasonably worth the sum of $2,000.”
How, I submit that from this allegation the defendant - had a right to suppose that when the case came to trial the plaintiff would produce some account, or memorandum *783showing the various items of service, and a charge made therefor', or that at least he would testify to the value ol each item of service. But when called upon to furnish a bill of particulars of this cause of action, this was all that was vouchsafed:
“May 14th to Aug. 1, 1890. Advised in all road matters. Cash entry land cases; helped make briefs for "Washington U. S. land department; advanced money for telegraph and express; drawing wills, and general work as his attorney; $2,000.”
I concur, that the appellant lost his right to have this item in the bill of particulars made more specific by not moving therefor; but that did not relieve the respondent from the burden of proving his case as laid. Therefore, when upon the trial he offered nothing but a general statement that all his books of account, in which he had kept his accounts with Parker, had been lost or destroyed by fire, and then went on to give a rambling story of his connection with Parker’s business, running through four years, without particularizing a single item of service, or showing that any item had even been set down in his books, or any charge made, or any account stated to Parker or demand made for settlement, or the value of any single service, I hold that the cause of action was not proven, and that it should have been withdrawn from the jury. All that the respondent would say was that his services shown in this way were well worth $500 a year for the four years, or $2,000 in all, and not until his cross-examination on his rebuttal did he attempt to fix the value of a single service, when he stated that a certain will which he had drawn was worth $100. Pie would not and did not say that he had ever charged up items to the amount of $2,000 in any book. I submit that such testimony was not sufficient to support the action as brought. I make no question of respondent’s right to be paid for the services performed, but *784before he can lay out of view the general rule that personal services are to be paid according to the value of each service, and recover upon an annual retainer, he must laysome foundation for it. That would be the case were his pleadings different. This is clearly shown in Hughes v. Dundee Mortgage, etc., Co., 21 Fed. Rep. 169, where there was a written retainer under which the attorney was “ generally to give his best attention to all the matters connected with the legal department of the company’s business, and to give such information and advice as may from time to time be requested or occur to him.” Hughes was the general attorney and counselor of the defendant corporation, and sued for his services on quantum, meruit, as plaintiff in this case does. But because he had kept no account and could furnish no testimony showing of what his services consisted, or their value, the court refused to find for him on that basis at all, but it did find that the nature of his contract was that of an annual retainer, and allowed him accordingly. The contrast between that caso and this one is most marked, when we see in this case that there had been an account which was lost or burned, but about which, or any item in which, no testimony was offered. There was not a particle of evidence in the case going to show that either plaintiff or defendant ever contemplated that there should be such a thing between them as a contract for an annual retainer, and I see no reason why the court should raise one for them.
For the same reasons the questions put to attorneys who heard plaintiff’s relation of the general nature of his services, as to what, in their opinion, was the yearly value of those services, were irrelevant and incompetent. As answered they were mere guesses, based rather upon the amount of annoyance endured by the attorney through certain disagreeable personal characteristics of his client than upon any showing of valuable services.