AILSHIE, C. J.
This action was brought by the plaintiff, as administratrix of the estate of Francis C. Jones, against John Marshall, as surviving partner of the law firm of Jones & Marshall. This firm had been in the practice of the law at Sandpoint, and upon the death of the partner Jones, the survivor Marshall was left with a large law business, consisting of general litigation; collections, insurance, and a considerable amount of real and personal property which had been acquired as fees in the law business and which was at the time partnership property. The action was for general accounting and settlement.
It appears that Jones died on January 8, 1907, and this action was commenced on the 25th of October, 1907. The case never reached final judgment, however, until the 17th of July, 1912. It appears that after the issues were formed, the case was referred to a referee to take testimony and report the same, together with findings, to the court. This was done, and after the report was made further evidence was taken before Hon. R. N. Dunn, one of the judges of the eighth district. For some reason the case was not yet finally submitted, and subsequently by stipulation the evidence which had been
taken before Judge Dunn was extended, and further oral testimony was submitted before Judge Flynn and other depositions were taken, and the whole case was at last submitted to Judge Flynn, who considered the evidence taken before the referee, the depositions, the evidence which had been submitted before Judge Dunn, and the evidence which was submitted in his own court before him personally, and he thereupon made findings of fact and conclusions of law and entered the judgment from which this appeal is taken.
The trial court made separate findings on each disputed •item, either allowing or rejecting the same or reducing it, as the justice of the case appeared to him. After considering the whole matter, he found that the defendant was indebted to the plaintiff as administratrix of the estate of her deceased husband in the sum of $3,118.70, and entered judgment accordingly. The defendant has appealed from the judgment and has brought up the evidence only which deals with the particular items which he contends were either improperly allowed or rejected.
In the first place, it has been suggested that under the rule announced by this court in
Roby v. Roby,
10 Ida. 139, 77 Pac. 213, and followed in
Stoneburner v. Stoneburner,
11 Ida. 603, 83 Pac. 938,
Spofford v. Spofford,
18 Ida. 115, 108 Pac. 1054,
Van Camp v. Emery,
13 Ida. 202, 89 Pac. 752,
Council Improvement Co. v. Draper,
16 Ida. 541, 102 Pac. 7, and
Parsons v. Wrble,
19 Ida. 619, 115 Pac. 8, it is our duty to examine and weigh the evidence in this case as though it were being originally tried before this court. The fact that oral testimony was introduced before Judge Flynn who rendered the decree in this case is a sufficient and complete answer to the contention made in this respect. This court has never departed from the rule that it will not disturb a judgment entered upon conflicting evidence where any part of the evidence has been given by the witnesses in person before the trial court. The rule applied in the foregoing eases applies only to a case where no witnesses were produced before the trial court or where the whole case was submitted on depositions, report of referee, or documentary evidence, and no wit
nesses appeared and testified before the court. We are governed, therefore, in this case by the general rule governing this court in cases of conflicting evidence.
The record that is presented to us here is voluminous, containing evidence bearing on a great number and variety of items of debit and credit. Our examination and consideration of the errors urged in appellant’s brief and the evidence introduced touching the matters complained of convinces us that we would not be justified in disturbing the findings of the trial court or reversing or modifying the judgment and decree entered thereon. There are some items referred to on which we might arrive at a different conclusion from that reached by the trial court if we were considering them as a court of original jurisdiction; but, taking the record as a whole, upon the whole account as it is presented here, we are strongly persuaded that the trial court reached an equitable and just conclusion in the case and that the judgment ought to be affirmed. In this connection we may here observe that in considering this case and reaching the conclusion above announced, we have considered it in the light of the law as the rule is contended for by appellant with reference to the right of a surviving partner of a law firm to compensation for closing up pending litigation for which fees have been collected and in prosecuting claims for the collection or protection of fees that had been partially or wholly earned. This principle of law was at least recognized in
McElroy v. Whitney,
12 Ida. 512, 88 Pac. 349. The statute of this state, sec. 5554, Eev. Codes, makes it the duty of the surviving partner to settle the business and affairs of the partnership without delay, and account with the executor or administrator and pay over such balance as may from time to time be payable. Under this statute, it was said in the Whitney ease, that the “surviving partner is not entitled to compensation for collecting the assets and winding up the firm business, as a general rule, in the absence of express agreement to that effect.” The same language is used in 22 Am. & Eng. Eney. of Law, at page 220, and the text-writer adds the following: ‘ ‘ There are, however, exceptions to this rule in modern adjudications. When a part
nership has been carried on for some time after dissolution by death and such continuance has proved to be beneficial, it has been held that the surviving partner should be allowed to take compensation for his services to be deducted from the profits before they are divided.”
In
Lamb v. Wilson,
3 Neb. (Unof.) 496, 92 N. W. 167, the question arose as to the right of one of the partners of a law firm to collect compensation for completing certain firm litigation. After holding that, where the surviving partner has by his labor and skill added increased profits to the business, he ought to have a reasonable compensation therefor, the court said: “While few cases are found which directly support this view, it seems to us to be founded upon the plainest principles of equity and justice, especially when applied to partnerships among professional men, where the profits are almost wholly the result of professional skill and labor.”
The supreme court of the United States in
Denver v. Roane,
99 U. S. 355, 25 L. ed. 476, after announcing the general principle applicable to cases of winding up the partnership business, said: “There may possibly be some reason for applying a different rule to cases of winding up partnerships between lawyers and other professional men where the profits of the concern are the result solely of professional skill and labor.”
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AILSHIE, C. J.
This action was brought by the plaintiff, as administratrix of the estate of Francis C. Jones, against John Marshall, as surviving partner of the law firm of Jones & Marshall. This firm had been in the practice of the law at Sandpoint, and upon the death of the partner Jones, the survivor Marshall was left with a large law business, consisting of general litigation; collections, insurance, and a considerable amount of real and personal property which had been acquired as fees in the law business and which was at the time partnership property. The action was for general accounting and settlement.
It appears that Jones died on January 8, 1907, and this action was commenced on the 25th of October, 1907. The case never reached final judgment, however, until the 17th of July, 1912. It appears that after the issues were formed, the case was referred to a referee to take testimony and report the same, together with findings, to the court. This was done, and after the report was made further evidence was taken before Hon. R. N. Dunn, one of the judges of the eighth district. For some reason the case was not yet finally submitted, and subsequently by stipulation the evidence which had been
taken before Judge Dunn was extended, and further oral testimony was submitted before Judge Flynn and other depositions were taken, and the whole case was at last submitted to Judge Flynn, who considered the evidence taken before the referee, the depositions, the evidence which had been submitted before Judge Dunn, and the evidence which was submitted in his own court before him personally, and he thereupon made findings of fact and conclusions of law and entered the judgment from which this appeal is taken.
The trial court made separate findings on each disputed •item, either allowing or rejecting the same or reducing it, as the justice of the case appeared to him. After considering the whole matter, he found that the defendant was indebted to the plaintiff as administratrix of the estate of her deceased husband in the sum of $3,118.70, and entered judgment accordingly. The defendant has appealed from the judgment and has brought up the evidence only which deals with the particular items which he contends were either improperly allowed or rejected.
In the first place, it has been suggested that under the rule announced by this court in
Roby v. Roby,
10 Ida. 139, 77 Pac. 213, and followed in
Stoneburner v. Stoneburner,
11 Ida. 603, 83 Pac. 938,
Spofford v. Spofford,
18 Ida. 115, 108 Pac. 1054,
Van Camp v. Emery,
13 Ida. 202, 89 Pac. 752,
Council Improvement Co. v. Draper,
16 Ida. 541, 102 Pac. 7, and
Parsons v. Wrble,
19 Ida. 619, 115 Pac. 8, it is our duty to examine and weigh the evidence in this case as though it were being originally tried before this court. The fact that oral testimony was introduced before Judge Flynn who rendered the decree in this case is a sufficient and complete answer to the contention made in this respect. This court has never departed from the rule that it will not disturb a judgment entered upon conflicting evidence where any part of the evidence has been given by the witnesses in person before the trial court. The rule applied in the foregoing eases applies only to a case where no witnesses were produced before the trial court or where the whole case was submitted on depositions, report of referee, or documentary evidence, and no wit
nesses appeared and testified before the court. We are governed, therefore, in this case by the general rule governing this court in cases of conflicting evidence.
The record that is presented to us here is voluminous, containing evidence bearing on a great number and variety of items of debit and credit. Our examination and consideration of the errors urged in appellant’s brief and the evidence introduced touching the matters complained of convinces us that we would not be justified in disturbing the findings of the trial court or reversing or modifying the judgment and decree entered thereon. There are some items referred to on which we might arrive at a different conclusion from that reached by the trial court if we were considering them as a court of original jurisdiction; but, taking the record as a whole, upon the whole account as it is presented here, we are strongly persuaded that the trial court reached an equitable and just conclusion in the case and that the judgment ought to be affirmed. In this connection we may here observe that in considering this case and reaching the conclusion above announced, we have considered it in the light of the law as the rule is contended for by appellant with reference to the right of a surviving partner of a law firm to compensation for closing up pending litigation for which fees have been collected and in prosecuting claims for the collection or protection of fees that had been partially or wholly earned. This principle of law was at least recognized in
McElroy v. Whitney,
12 Ida. 512, 88 Pac. 349. The statute of this state, sec. 5554, Eev. Codes, makes it the duty of the surviving partner to settle the business and affairs of the partnership without delay, and account with the executor or administrator and pay over such balance as may from time to time be payable. Under this statute, it was said in the Whitney ease, that the “surviving partner is not entitled to compensation for collecting the assets and winding up the firm business, as a general rule, in the absence of express agreement to that effect.” The same language is used in 22 Am. & Eng. Eney. of Law, at page 220, and the text-writer adds the following: ‘ ‘ There are, however, exceptions to this rule in modern adjudications. When a part
nership has been carried on for some time after dissolution by death and such continuance has proved to be beneficial, it has been held that the surviving partner should be allowed to take compensation for his services to be deducted from the profits before they are divided.”
In
Lamb v. Wilson,
3 Neb. (Unof.) 496, 92 N. W. 167, the question arose as to the right of one of the partners of a law firm to collect compensation for completing certain firm litigation. After holding that, where the surviving partner has by his labor and skill added increased profits to the business, he ought to have a reasonable compensation therefor, the court said: “While few cases are found which directly support this view, it seems to us to be founded upon the plainest principles of equity and justice, especially when applied to partnerships among professional men, where the profits are almost wholly the result of professional skill and labor.”
The supreme court of the United States in
Denver v. Roane,
99 U. S. 355, 25 L. ed. 476, after announcing the general principle applicable to cases of winding up the partnership business, said: “There may possibly be some reason for applying a different rule to cases of winding up partnerships between lawyers and other professional men where the profits of the concern are the result solely of professional skill and labor.”
We believe that the suggestions made in the foregoing authorities are sound, and in cases of partnership among persons engaged in professional employment, an exception should be made to the general rule to the extent of allowing reasonable compensation for the extra services necessary to complete and carry out a contract or close employment already undertaken. We have not been unmindful of this rule in the present case. Under the circumstances of this case, we think the trial court allowed appellant all that he was justly entitled to receive.
In addition to the great mass of evidence contained in the record in this case, counsel have furnished ps with exhaustive briefs in which they have taken up various assignments of error and discussed the evidence in connection therewith. We have given all the questions presented our careful consideration, but it would be of no use for us to include a discussion of
these various assignments in this opinion. They are practically all questions of fact.
The judgment should be affirmed, and it is so ordered. Costs- awarded to respondent.
Sullivan, J., concurs.