Spaulding v. Lambros

193 P. 565, 58 Mont. 536, 1920 Mont. LEXIS 142

• Court: Montana Supreme Court
• Decided: November 22, 1920
• Docket: No. 4,586
• Status: Published

Opinion

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Action by plaintiffs to recover of the defendants for legal services' rendered them and for money expended at their special instance and request. The services rendered were for the purpose of establishing a claim by defendant John Lambros of exemption from military service in the army of the United States under the Selective Service Act. (Chapter 15, p. 76, 40 Stats, at Large (U. S. Comp. Stats. 1918, U. S. Comp. Stats. Ann. Snpp. 1919, secs. 2044a-2044k, 9 Fed. Stats. Ann., 2d ed., p. 1136, etc.; Fed. Stats. Ann. (1919), p. 364, etc.).

The amended complaint alleges that the services were [1] rendered between September 1 and December 1, 1917; that they were of the reasonable value of $1,000; and that the sum of $100 was expended by plaintiffs in the payment of necessary traveling expenses, hotel bills, etc. It is further alleged “that the defendants have not paid the same nor any part thereof.” Upon the overruling of their general demurrer, defendants answered, admitting that services were rendered by the plaintiffs Canning and Geagan reasonably worth not more than $200, which sum the defendant John Lambros is ready and willing to pay, but the plaintiffs have refused to accept. All other allegations are denied. The jury returned a verdict for $700, with interest at eight per cent per annum from December 1, 1917, when demand was made upon the defendants for payment. The cause is before this court on appeals from the judgment and an order denying defendants’ motion for a new trial.

The defendants’ brief contains several assignments of error, but only two questions are submitted for consideration: (1) "Whether the court erred in overruling defendants’ demurrer; and (2) whether the evidence is sufficient to justify the verdict.

It is contended that the complaint is fatally, defective in that it fails to allege properly that the amount claimed by plaintiffs has not been paid. This contention is disposed of by ‘the case of Sanford v. Newell, 18 Mont. 126, 44 Pac. 522, in which was considered a pleading similar to the one before us. Of it the court said: “The complaint is good as against general demurrer. It alleges the performance of certain services as attorneys for the defendants, that such services were performed at the special instance and request of the defendants, and that the services were reasonably worth $500, and that defendants have not paid the same. These are allegations of fact upon which issues could be and were made.” It is said by counsel that the allegations referred to are pregnant with the admission that. some person other than the defendants may have paid the amount before the action was brought. This contention has no merit, for the reason that there is no presumption that anybody other than the defendants themselves would, under any circumstances, assume to pay their debt.

The second contention proceeds upon the theory that it [2] appears from the evidence that the services were rendered for the purpose of aiding John Lambros, one of the defendants, to evade military service under the Federal Act referred to siip'ra, and that an agreement to perform such services was void because it was in contravention of public policy. This contention is also without merit, for the reason that it appears that defendant John Lambros was an alien who had not de,clared his intention to become a citizen of the United States. Under the express provisions of the Selective Service Act supra, he was not liable to be inducted into military service. The provision of section 2 of the Act declares what persons were liable to service, as follows: “Such draft as herein provided shall be based upon liability to military service of all male citizens, or male persons not alien enemies who have declared their intention to become citizens, between the ages of twenty-one and thirty years, both inclusive.” This provision necessarily excluded all aliens who had not declared their intention to become citizens. Since no person of this class was under obligation to enter the service, it was Lambros’ privilege, if he chose to do so, to claim his exemption and to employ counsel to assist him in the preparation and presentation of his claim to the local exemption board having jurisdiction to determine it. The assertion of his claim by this defendant not being disloyal or in contravention of public policy it cannot be said that the plaintiffs were open to the charge of disloyal or unethical conduct in agreeing to represent him or in exacting from him compensation for their services.

The judgment and order are affirmed.

Affirmed.

Associate Justices Holloway, Hurly, Matthews and Cooper concur.