Ganoe v. Ohmart

246 P. 348, 118 Or. 135, 1926 Ore. LEXIS 82

Opinion

BELT, J.

There are no questions of law involved. The principal controversy arises over a fee of $2,000 allowed in a partition suit instituted to divide certain property among the heirs in the Henry D. Winters estate. A careful study of the transcript of evidence and the briefs submitted convinces us that the partnership of Granoe and Ohmart had no concern in the fee in question. The partition suit was a phase of the Winters estate litigation not embraced within the scope of the agreement relative to division of fees. He who charges fraud must establish it by clear and satisfactory evidence, and this the defendant has failed to do. A complete recital of the evidence as a basis for the conclusion reached might prove of interest to the parties litigant, but would not be beneficial or instructive to the profession generally. The late Judge Stapleton, who heard this cause in the lower court and who will long be remembered for his knowledge of the law and his great fund of common sense, substantially expresses our views in an able opinion made a part of the record herein. So let it be.

Appellant claims 50 per cent of a fee of $50 earned by the firm in Spence v. Hull. Eespondent is uncertain whether he accounted to defendant in this particular case and states he is willing to give him the benefit of the doubt. Defendant will therefore be allowed a credit of $25.

In Kiesendahl v. Ganoe, 94 Or. 283 (185 Pac. 589), plaintiff was allowed a fee of $250 as an offset for damages sustained by Kiesendahl in that case. It is true that the firm did not collect this fee but since Gfanoe was benefited to the extent above mentioned we think it only equitable that Ohmart be credited herein for his share of the fee, namely, $125.

In the 'decree of the trial court it seems that, through inadvertence, defendant was not given credit for payment of $753 admitted by plaintiff in his complaint to have been made on the notes therein described. The decree will therefore be modified awarding plaintiff judgment against defendant in the sum of $943.97, with interest thereon at the rate of 7 per cent per annum from June 7, 1920, together with the sum of $75 allowed as attorney’s fees. Neither party will recover costs and disbursements here nor in the lower court.

Modified.

McBride, C. J., and Bean and Brown, JJ., concur.