Price v. Western Loan & Savings Co.

100 P. 677, 35 Utah 379, 1909 Utah LEXIS 29

Opinion

McCAMTY, C. T.

(after stating tbe facts as above).

Long after this case was argued and submitted, respondent filed a motion to dismiss tbe appeal. One of tbe grounds assigned is that tbis court is without jurisdiction to determine tbe questions involved, except to dismiss the appeal for tbe reason “that tbe appeal, as designated in said notice of appeal, is not an appeal from a. final judgment, but . . . is an appeal from an order or judgment overruling a motion for a new trial.” Tbe record shows that tbe judgment was rendered September 26th, 1906, and that a motion for a new trial was filed October 2nd, and overruled December 8th, 1906. The notice of appeal (omitting the title) is as follows: “To the above-named defendant, 0. S. Price, and to Edwards & Smith, bis attorneys: Ton and each of yon will please take notice that the defendant in the above-entitled action hereby appeals to the Supreme Court of the State of Utah from the judgment, and the whole thereof, made, rendered, and entered in favor of the plaintiff and against the defendant, in said district court of the Third' Judicial District in and for the County of Salt Lake and State of Utah on the 8th day of December, A. D. 1906, at which said time the court denied and overruled the defendant’s motion for a new tidal theretofore made and filed, and entered judgment as aforesaid for the plaintiff and against the defendant in the sum of $1,075, together with interest and costs taxed in the sum of $21.10.”

Despondent contends that this is an appeal from an order of the court made and entered December 8th, 1906, denying and overruling appellant’s motion for a new trial, and not an appeal from the final judgment rendered in the ease. Of course, if the appeal is from the order denying and overruling appellant’s motion for a new trial, and not from the final judgment, respondent’s motion to dismiss must prevail. But is the appeal from an order overruling a motion for a new trial? We think not. While we do not-regard the notice of appeal as a model, yet we deem it sufficient to show an appeal from the judgment. It recites that the appeal is. taken “from the judgment and the whole thereof made and entered in favor of plaintiff and against the defendant . . . on 'the 8th day of December, A. D. 1906, ... in the sum of $1,075, together with interest and costs taxed in the sum of $21.10.” No claim is made that the respondent has been misled or in any wise prejudiced by the statement in the notice of appeal that the judgment appealed from was rendered on the 8th day of December, 1906, instead of September 26th, 1906, the true date thereof. The most that can be said in favor of respondent’s position is that the appeal is taken both from an order overruling a motion for a new trial and from a final judg ment. Conceding, for the purposes of this .appeal, . . • that such is the ease, it does not vitiate the appeal. 1 (2 Spelling, New Tr. & App. Pro. 524; White v. Pease, 15 Utah 170, 49 Pac. 416; Watson v. Mayberry, 15 Utah 265, 49 Pac. 479; Bear River V. Co. v. Hanley, 15 Utah 506, 50 Pac. 611; Bacon v. Thornton, 16 Utah 138, 51 Pac. 153.) Nor was the appeal rendered abortive because of the insertion of a wrong date in the notice as to when the judgment appealed from was rendered; it 2 clearly appearing from the record that the respondent was neither misled nor in any way prejudiced by the mistake. (2 Spelling, New Tr. & App. Pro. 524; Weyl v. Sonoma Valley R. R. Co., 69 Cal. 202, 10 Pac. 510.) The object of a notice of appeal is to advise the opposite party that an appeal has been- taken from a specific judgment in a particular case. If the notice is plain and explicit in this particular and sufficient in all other requisites, it ought not to be declared a nullity. The trend of 3, 4 modern authority is to the effect that statutes giving the right of appeal are to be liberally construed. In Sutherland on Statutory Construction (2d Ed.), sec. 717, it is said: “Statutes giving the right of appeal are liberally! construed in furtherance of justice. Such an interpretation as will work a forfeiture of that right is not favored.” This same doctrine is announced in 1 Spelling, New Tr. & App. Pro. 534; Elliott, App. Pro. 171; Watson v. Mayberry, supra; Mendenhall v. Elwert [Or.], 52 Pac. 22.

The next ground assigned for the dismissal of the appeal is that no undertaking was filed as required by law, for the reason that it recites that it is to secure the payment of a judgment made and entered on the 8th day of December, 1906, instead of securing the payment of the judgment appealed from, namely, a judgment made and entered in the district court September 26th, 1906. Assuming, for the purposes ■ of this appeal, that the undertaking is open to the objection urged against it, it does not necessarily follow that the appeal must, or should be dismissed. Under section. 3319, Comp.. Laws 1907, this court could permit 5 appellant to file a new undertaking; but, in view of the disposition that must be made of the case on this appeal, we deem it unnecessary to make such an order.

The motion to dismiss is overruled and denied.

Coming now to the merits of the ease: The first ground urged why the judgment should be reversed is that the contract ' in question lacks mutuality. Counsel for appellant contends that while the contract provides that the appellant shall not dispense with the services of respondent so long as such services are necessary, and so long as they “are as satisfactory as they have been in the past two years,” it does not obligate respondent to continue in the employment of appellant for any definite period of time. In other words, counsel contend — if we correctly understand their position —that in contracts of this kind there must be a two-fold obligation ; an obligation on the part of the employee to enter the service and to continue therein, and a corresponding obligation on the part of the employer to hire. We think it will be conceded that under the terms of the contract respondent was not bound to continue in the service of appellant for any definite length of time; that is, he could terminate the contract at will. In construing this kind of a contract, it is necessary to consider the circumstances under which it was entered into, the relations of the 6 parties to each other, and the consideration passing from the employee to the employer. There-is a line of well-reasoned cases which hold that a contract of hire, where part of the consideration is paid in advance and the employee has parted with value, such as the release of a claim for damages against his employer, and the latter has been cor•respondingly benefited thereby, is not wanting in mutuality. Ini such cases it is said that no reciprocal promise binding the employee to serve for any definite period of timé is necessary, for the release is held to be sufficient consideration. to uphold the contract. The following are a few of the cases which illustrate and uphold this doctrine: East Line & R. R. R. Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758; Pennsylvania v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289; Smith v. St. Paul & D. R. Co., 60 Minn. 330, 62 N. W. 392; Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N. W. 536; Pierce v. Tenn. Coal, Iron & R. Co., 110 Ala. 533, 19 So. 22. Pespondent seeks to apply the rule announced in these cases to the case at bar; but the difficulty is that in this case the record shows that about the 1st of May, 1904, the parties mutually terminated the arrangement under which respondent had for two years been acting as the general attorney for the appellant and entered into a new and independent contract, namely, the contract in question, whereby respondent agreed to continue to act as general counsel for the company at a fixed salary of $100 per month. The only consideration that passed from the respondent for the employment at the time the contract was entered into was his promise to perform the services therein mentioned. In pursuance of the terms of the contract and the services rendered by respondent thereunder, appellant paid him $100 at the end of each month, which sum he accepted in full satisfaction of all services performed by him during said month, regardless of the amount or importance of the services rendered. As hereinbefore 7 observed, the contract, neither expressly nior impliedly, bound him to act as appellant’s attorney for any specified period of time. Therefore it lacked the essential element of mutuality of obligation and was terminable at will by either party. (1 Page on Contracts, sec. 304; Louisville & Nashville R. Co. v. Offutt, 99 Ky. 427, 36 S. W. 181, 59 Am. St. Rep. 467; Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; St. Louis, etc., R. Co. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467; Dorsey v. Packwood, 12 How. 126, 13 L. Ed. 921; 9 Cyc. 327, and numerous cases cited in note 20.)

Appellant’s next contention is that, if the contract is not open to tbe objection tbat it lacks mutuality, tbe judgment would still bave to be reversed because of tbe alleged erroneous findings made by tbe court. Tbe court in its ninth finding found: “Tbat tbe discharge of plaintiff by defendant was without cause, . . . and said defendant thereby violated tbe terms and conditions of said agreement, to tbe injury and damage of tbe plaintiff.” It is insisted that this finding is not only unsupported by, but is contrary to, tbe evidence. We think this contention must be upheld. Respondent’s letter to appellant of May 3rd, 1904, which contains tbe terms and conditions of 'the contract, concludes as follows: “It is understood that my services are not to be dispensed with so long as such services are necessary and without good reason appearing therefor.” It is claimed tbat tbe undisputed evidence shows tbat appellant ^had good reason for discharging respondent. It appears from the record tbat for several months prior to the discharge of respondent tbe relations between him and some of tbe officers of the company bad been very unpleasant, and tbat there was much dissension between them over tbe business affairs of the company. These strained relations were very pronounced 8 as between respondent and P. W. Madsen, who was president and business manager of tbe company. Neither appeared to bave any respect for or confidence in tbe other. This feeling of ill will and resentment, which was tbe cause of much discord between them over matters pertaining to the management of tbe business of tbe company, became known to tbe finance committee, whose duty it was to employ all help required by the company, including attorneys, and tbe committee ordered Madsen to discharge respondent. As to which.of tbe parties was responsible for the ill will, discord, and lack of confidence tbat existed, we are not concerned. Tbat these parties, especially Madsen and Price, mutually disliked each other, and tbat this feeling of ill will and discord must bave been, at least to' some extent, detrimental to tbe interests of tbe company, we think is conclusively shown by the evidence. Tbe record shows that tbe services of an attorney were indispensable to tbe successful carrying on of tbe business in wbicb tbe appellant was engaged. Not a loan could be made without tbe advice and assistance of an attorney. Tbe very nature of tbe business rendered it necessary for tbe officers of tbe company •wbo bad control and management of its business to continually consult and refer matters to tbe attorney. Besides, tbe evidence shows that tbe company was almost continually engaged in litigation before the courts of this and other states. It therefore requires no argument to show that to compel tbe company to continue in its employ an attorney under such strained and discordant relations would not only be detrimental to the successful carrying on of tbe business in which it was engaged, but might in course of time, jeopardize its very existence. Therefore we think tbe condition of affairs as shown by tbe undisputed evidence in tbe case afforded appellant good reason for discharging 9 respondent. Furthermore, tbe law bolds the relationship of attorney and client to be one of reliance, trust, and confidence, and, as was said in tbe case of Henry v. Vance, 111 Ky. 72, 63 S. W. 273:

“It would not do to require a party to continue in bis service one whom be distrusts, or whose capacity be no longer believes in, nor to permit tbe attorney under sucb circumstances to continue tbe relationship, where tbe lack of confidence would seriously impair bis efficiency and interfere with bis full opportunity to serve tbe party and tbe court as bis office requires. That tbe client has tbe right to discharge bis attorney at any time without cause . . . cannot well be doubted.” (Mecbem on Agency, 856; Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; 4 Cyc. 554.)

Whem tbe discharge is without cause, or where it is shown that tbe attorney is not alone derelict, but that both parties are at fault and are equally responsible for tbe unfortunate condition of affairs, wbicb makes it necessary for tbe client, in tbe interest 10 of bis business, to dispense with tbe services of tbe attorney in bis employment and employ another, tbe attorney may recover for tbe services already performed by him under bis contract of employment. (Weeks on Attorneys, sec. 334; Mechera on Agency, 856.) In this case, however, respondent was paid the contract price for his services, $100 per month for each and every month he was in the employ of appellant under the contract in question.

The judgment is reversed, and the cause remanded for a new trial; appellant to recover costs.

STRAUP, J., and LEWIS, District Judge, concur.