(56 Mont. 195)

ASBURY v. ROBBINS. (No. 4018.) (Supreme Court of Montana. June 18, 1919.)

Yellowstone

Appeal from District Court, County; A. C. Spencer, Judge. Action by Nellie B. Asbury, as administratrix of the estate of John F. Asbury, deceased, against E. L. Robbins, as executor of the estate of John D. Losekamp, deceased. From judgment for plaintiff, and an order denying defendant's motion for new trial, defendant appeals. Judgment and order reversed, and cause remanded.

Johnston & Coleman and Nichols & Wilson, all of Billings, for appellant.

Collins, Campbell & Wood, of Forsyth, for respondent.

HOLLOWAY, J. This case is controlled by the decision in Crosby v. Robbins et al., 182 Pac. 122, just decided. Upon the authority of that case, the judgment and order are reversed, and

the cause is remanded for a new trial. Reversed and remanded.

Original proceeding for the disbarment of R. O. Lunke, an attorney. Respondent suspended.

C. B. Nolan and C. A. Spaulding, both of

BRANTLY, C. J., and COOPER, J., concur. Helena, for accused.

(56 Mont. 196)

HANSON v. ROBBINS. (No. 4017.) (Supreme Court of Montana. June 18, 1919.)

Appeal from District Court, Yellowstone County; A. C. Spencer, Judge.

S. C. Ford and I. W. Choate, both of Helena, for the State.

HOLLOWAY, J. R. O. Lunke, an attorney admitted to practice in the courts of this state, was accused by the Attorney General of professional misconduct. After issues joined, the matter was referred to John G. Action by Albert S. Hanson against E. L. Brown, Esq., to take testimony and report Robbins, as executor of the estate of John D. findings and make recommendations. The Losekamp, deceased. From judgment for plain-complaint contains five charges. The third tiff, and an order denying defendant's motion was abandoned, and the referee finds that the

for new trial, defendant appeals. Judgment and

order reversed, and cause remanded for new trial.

Johnston & Coleman and Nichols & Wilson, all of Billings, for appellant. Collins, Campbell & Wood, of Forsyth, for respondent.

HOLLOWAY, J. This case is controlled by the decision in Crosby v. Robbins et al., 182 Pac. 122, just decided. Upon the authority of that case, the judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded.

"

evidence is insufficient to sustain the fourth.

First. The accused is charged with failing to account for money collected by him for his client, and with concealing from his client material facts which it was his duty to disclose. The referee has found that the evidence is insufficient to sustain a charge of corrupt practice, but that the accused is subject to censure for concealing from his client material facts.

Second. The substance of the second charge is that the accused knowingly rendered false statements of account to his client.

BRANTLY, C. J., and COOPER, J., concur. That incorrect statements were rendered is

admitted by the accused, but the referee has accepted his explanation with reference to all the erroneous items save one, and finds that an overcharge of $50 is seemingly without excuse.

Fifth. The referee finds that the fifth charge is sustained, and recommends that the accused be suspended for six months.

each excepts to the findings.
The Attorney General and the accused

Findings of a referee are not absolutely conclusive, yet they should be given the same dignity as a special verdict of a jury or find[1] While the findings of a referee are not ings of a trial court, and whenever they depend absolutely conclusive, they are to be given on conflicting testimony they will be treated the same dignity as the special verdict of a

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(182 P.)

jury or the findings of a trial court, and whenever they depend upon conflicting testimony they will be treated as unassailable if there is any substantial evidence to sustain them. 23 R. C. L. 299, and cases cited. We are satisfied that the evidence is sufficient to justify the findings returned herein, and they are approved.

to keep the funds of the trust separate from his private funds, and not, by mingling them together, to expose the trust funds to the risks to which his own property may become liable." Sparhawk v. Sparhawk, 114 Mass. 356, 358.

"It is one of the primary duties of a trustee

The relation of attorney and client has always been regarded as one of special trust and confidence. The funds committed to the [2, 3] Since the last charge involves the custody of the accused in this instance were most serious consequences, a brief reference trust funds, to which he had no claim. His to it is made. In 1918, in a criminal action abuse of confidence is inexcusable, and his pending in Carter county, wherein J. A. Mc- misuse of the funds was a fraud upon the Glynn was defendant, one Wm. McGlynn de- client. Sections 5375, 5380, Rev. Codes. posited with the clerk of the district court He had no right in law or morals to mingle $5,000 as cash bail. Thereafter, about July the trust funds with his own private prop11, 1918, Judge Hurley made an order per-erty, or to profit by the use of funds belonging mitting the substitution of a personal under- to his client. Allard's Guardianship, 49 taking, and the substitution was made. Mr. Mont. 219, 141 Pac. 661. The Supreme JudiLunke, acting for Wm. McGlynn, secured cial Court of Massachusetts has said: from the treasurer of Carter county a return of the money, taking in the name of Lunke & Hoover two checks issued by the treasurer, one for $3,000 and one for $2,000. The checks were dated July 13th. About July 15th Lunke indorsed the check for $3,000 and caused it to be deposited to the credit of McGlynn, explaining to his client, about the same time, that there would be some delay attending the payment of the remainder, as the officials of Carter county had raised the question of Judge Hurley's authority to order the substitution, but that in his (Lunke's) opinion the reason for holding up the payment was because the county was short of funds. In the meantime, Lunke had taken the check for $2,000 to his office in Billings, had indorsed it and left it with his clerk, with instructions to hold it a few days and then deposit it for collection. The record does not disclose just when it was deposited, but on July 24th it was paid by the bank upon which it was drawn, the money received and deposited to the credit of Lunke & Shea, and nearly all of it paid out in the discharge of the firm's private obligations. In his conversation with McGlynn, Lunke never intimated that he had the check for $2,000, but about September 1st McGlynn made inquiry of the clerk of the court, ascertained the facts, and called Lunke to account. Lunke gave his note for the amount, and in November following paid it, with interest.

The record discloses that the general manner in which the accused has conducted his business, if persisted in, must of necessity more serious difficulties. involve him in Many men, prominent in professional and business life, have testified that, prior to the time these charges were made, the accused bore an excellant reputation and was considered entirely trustworthy in the practice of the law. It is further disclosed that he has a considerable amount of business now on hand, and that the interests of his clients must suffer greatly if he is deprived of the right to practice for the remainder of the year. To the end that the burden of punishment shall fall upon him, rather than upon his clients, and that every opportunity may be afforded him to reform and correct the manifest abuses in his practice, we have concluded to substitute, for the punishment recommended by the referee, a shorter period of suspension and the payment of the expenses incurred by the state in this proceeding, as a condition precedent to his right to reinstatement.

It is ordered that the accused, R. O. Lunke, be suspended from his office as attorney and counselor at law. On or after August 1st of this year, upon paying to the clerk of this court the amount of costs incurred herein by the state, he will be reinstated without further order.

We refrain from comment upon the explanation offered by the accused. He must have known that the money deposited as cash bail did not belong to Carter county, could not be used by the county, that repayment of it could not deplete the county funds, and that there was not and could not be any reason for delaying the payment of the check for $2,000. There is not any excuse for the failure to deliver this check to Mc- BRANTLY, C. J., being absent, takes no Glynn at the time the other one was deliv-part in the foregoing decision.

COOPER, J., concurs.

The complaint charges the wrongful suing out of the attachment and the damages resulting therefrom, the answer denying all the material allegations thereof.

The plaintiff gave evidence concerning the several items of damage suffered by him in the matter of expenditures for travel from his ranch to Sheridan, Wyo., for the purpose of consulting attorneys with a view to obtaining the discharge of the attachment, hotel bill at Sheridan, expense involved in travel from Sheridan back to the ranch, and thence to Forsyth for the purpose of securing bond to effect the release of the attachment, the cost of the bond, hotel bills at Forsyth, counsel fees in connection therewith, and other items of expense not necessary to particularize. Donald Campbell, Esq., of counsel for plaintiff, testified that services were rendered by the firm of which he was a member, in and about the attachment proceedings; that he had served as referee in an action for an accounting between plaintiff and Taintor, and as such became familiar with the matters in issue between them. He gave evidence touching the nature of the services so rendered, stating that in his opinion $250 was a reasonable compensation therefor. Albert Brown, the only witness for defendant, gave evidence tending to show that the attachment proceedings in no wise affected the purchase by him of plaintiff's ranch, or the payment to

Appeal from District Court, Rosebud plaintiff of the purchase price thereof, thus County; A. C. Spencer, Judge.

Action by C. C. St. John against the United States Fidelity & Guaranty Company. From a judgment for plaintiff and an order overruling its motion for new trial, defendant appeals. Reversed and remanded.

Gunn, Rasch & Hall, of Helena, O. F. Goddard, of Billings, and Geo. W. Farr, of Miles City, for appellant.

Collins, Campbell & Wood, of Forsyth, and E. E. Enterline, of Billings, for respondent.

raising an issue between himself and plaintiff upon that point, and the alleged damages suffered by plaintiff in this regard.

At the close of the testimony, counsel for plaintiff moved the court to direct a verdict in favor of plaintiff for the sum of $931.92, upon the ground that there was no issue of fact to be submitted to the jury. The motion was granted over defendant's objection; verdict and judgment followed; motion for a new trial was made and overruled; and appeal was taken therefrom.

[1, 2] It is appellant's contention that an COOPER, J. The plaintiff, C. C. St. John, issue was created for determination by the and one C. M. Taintor were engaged in the jury upon the question of the reasonableness business of stock raising in the county of of the amount paid for counsel fees, as well Rosebud in this state. A dispute arose in- as the items of expenditure incurred by volving the conduct of the business and the plaintiff in obtaining the aid of counsel. accounts between them. At the instance of This contention must be sustained. The ac Taintor, upon a claim of indebtedness due tion is upon the attachment bond, condifrom the plaintiff to Taintor, writs of at- tioned that in case it should be finally detachment were levied against the interests of cided that the plaintiff was not entitled to plaintiff, and upon their discharge suit was an attachment "the plaintiff will pay all the instituted by the plaintiff against the de- costs that may be awarded to the defendant. fendant, as surety on the bond given by and all damages he may sustain by reason Taintor to secure the attachment. Judg- of the issuing out of the attachment not ment was obtained in the sum of $931.92, and exceeding the sum of $10,000." The case the case is now here on appeal from the was dismissed, and the attachment dissolvorder denying a new trial, and from the ed. Liability was then fixed upon the surejudgment. ty, and the defendant here became responsi

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(182 P.)

ble for the expenses reasonably and necessarily incurred in obtaining the discharge of the attachment and the amount paid the attorneys employed for that purpose.

(56 Mont. 204)

ST. JOHN v. TAINTOR. (No. 4011.)

(Supreme Court of Montana.

1. TRIAL

June 20, 1919.)

251(2)-INSTRUCTIONS-INSTRUC

TIONS VARYING FROM THEORY OF CASE. In an action for malicious prosecution in suing out attachments and procuring a receivership, instructions, peremptory in their nature, and prominently setting before the jury wrongtified by the pleadings and inconsistent with ful conversion, which was an element not justhe hypothesis on which the action was institut

2. JUDGMENT 250 PLEADINGS AND ISSUES AS BASIS-GROUND OF ACTION.

licious prosecution in suing out attachments and Where the theory of a complaint was maprocuring a receivership, judgment based on the theory of conversion will not be sustained.

The trial court committed no error in directing the jury to find a verdict for the plaintiff, but was wrong in fixing the amount of the award. Under the issues, the amount which the plaintiff had a right to recover was a debatable question of fact which it was the function of the jury to determine. True, the witness Campbell fixed the amount that, in his opinion, was reasonable and nec-ed and trial had, held fundamental error. essary. But the jury was not bound to give unqualified credit to this testimony, given, as it was, in his own behalf, even though not contradicted by any other witness. A jury cannot be required to accept as matter of law the conclusions of witnesses in questions of this character. Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; Plymouth Gold Min. Co. v. United States F. & G. Co., 35 Mont. 23, 88 Pac. 565, 10 Ann. Cas. 951. Whether, in the accomplishment of a given purpose, expenses incurred are necessary and reasonable rests upon so many varying circumstances that it would be dangerous to preclude inquiry concerning them. Jurors, in the end, must use their own judgment in arriving at a determination of the value of services rendered by attorneys, based upon the opinions of experts and evidence as to the character and amount of the services. Baker v. Richmond City Mills Works, 105 Ga. 225, 31 S. E. 426; Moore v. Ellis, 89 Wis. 108, 61 N. W. 291; Railway Co. v. Whitney, 143 Iowa, 506, 121 N. W. 1043; Steel v. Gordon, 14 Wash. 521, 45 Pac. 151. And so of the other items of expense incurred in securing the discharge of the attachment.

Appeal from District Court, Rosebud County; A. C. Spencer, Judge.

[3] We think, too, that plaintiff was entitled to recover the $50 paid by him for the procurement of the bond, to release the attachment upon the submission of sufficient competent proof of the payment of the same, especially in view of the fact that such action would in all likelihood tend to minimize the damage suffered by him and eventually relieve the surety company to that extent. On the whole, we are of opinion that the questions respecting the damages suffered by the plaintiff by reason of the attachment should have been submitted to the jury under proper instructions. The order of the trial court, therefore, in directing the jury as matter of law to find for the plaintiff in the lump sum of $931.92, was error.

The judgment appealed from, together with the order overruling the motion for a new trial, are reversed.

Reversed and remanded.

BRANTLY, C. J., concurs in the result.
HOLLOWAY, J., concurs.

Action by C. C. St. John against C. M. Taintor. From judgment for plaintiff and denial of new trial, defendant appeals. Reversed, and new trial ordered.

Gunn, Rasch & Hall, of Helena, O. F. Goddard, of Billings, and Geo. W. Farr, of Miles City, for appellant.

Collins, Campbell & Wood, of Forsyth, for respondent.

COOPER, J. This is an appeal from a judgment in favor of the respondent in the sum of $40,030.74, and an order denying appellant a new trial. The record, consisting of 733 printed pages of pleadings and evidence, essays, with labored circumlocution, to portray the fortunes of a successful stock-raising enterprise, and the proceedings attending its delivery into the hands of a receiver.

In 30 particulars, appellant insists the court erred upon the trial. If the first-to the effect that the case was submitted to the jury upon a theory different from the one upon which it was founded-is to be sustained, the result must be a new trial, for the reason that the issues were framed upon one theory and presented to the jury upon another so different that the end obtained cannot be permitted to stand, because the verdict and judgment do not respond to the issues made by the pleadings.

The gravamen of the complaint is malicious prosecution. Its author-upon the theory that appellant was imbued with a desire to

obtain respondent's interest in the business at
the lowest possible figure-sets forth a detail-
ed account of the dealings between the partles
and the proceedings antedating the starting
of the present action. The answer contains
general denials, charges a loss of heart upon
the part of respondent, and a claim that the

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182 P.-9

preservation of appellant's interests in the [tions, the correspondence passing between property demanded the employment of the drastic measures to which he resorted. That words may not be spent in vain, we shall content ourselves with a narrative of only the material issues necessary to the disposition of this appeal. Inasmuch as the sustaining of the first assignment will suffice to send the case back for another trial, and none of the problems we are asked to solve will likely embarrass the trial court, counsel, or the parties again, we shall waste no effort in the consideration of the remaining questions.