Department 1. Appeal from Superior with Erickson, who had been her master at Court, San Juan County; Augustus Brawley, Judge. Action by James Boe against the Hodgson Graham Company. Judgment for defendant, and plaintiff appeals. Affirmed. J. W. Bryan, of Seattle, for appellant. Frank P. Christensen, of Friday Harbor, for respondent. TOLMAN, J. This action was brought by the appellant to recover the value of the gasoline launch Try, of which he alleges he was the owner, and which he rented or chartered to the respondent in August, 1916, by oral agreement, to be used in purchasing and transporting fish from the boats or places where purchased to the cannery of the respondent. It is agreed that the appellant's brother-inlaw, one Erickson, who had operated the boat from the time it was built in 1912, was to accompany the boat in respondent's service, and that the $5 per diem charge agreed upon covered the use of the boat and the wages of Erickson. But there is a very sharp conflict in the testimony and conclusions of the respective parties as to who should have charge and direction of the boat and be responsible for her safety; the appellant contending that the fish buyer in the employ of the respondent, one Friend, had sole charge and direction of the boat and was in effect her master, while the respondent contends that Erickson was in fact the master of the boat at all times, and, while Friend might and did direct when and to what points the boat should go, that the operation, handling, and to what extent the boat should be loaded was left wholly to Erickson's judgment as the master. On August 19, 1916, while operating under the agreement referred to, and after taking on a load of fish and starting for the cannery upon a perfectly smooth sea, the boat sank. Trial was had to the court without a jury, resulting in findings and judgment in favor of the respondent, from which this appeal is taken. all times theretofore, placed Friend on board as a fish buyer only, with authority to direct when and where the boat should go in pursuit of the business in which he was employed, but that Erickson, who was fully advised as to her capacity and characteristics, was left free to operate her as he thought proper under these general directions. If the boat sank by reason of overloading, which seems probable, we think the fault lay with Erickson, the master, and the representative of the owner, for, though he makes some rather uncertain statements as to having protested at the amount of the load, yet he does not deny that Friend asked him if they could safely take on another hundred fish, and he tacitly consented thereto and, after the loading was completed, he put the boat in motion without any protest as to the amount of the load, and started out to sea without examination to see how much free board he had, without insisting upon the hatches being fastened down to prevent water which might come over the stern from pouring into the hold, and in fact without taking any precautions which a master should take to secure the safety of his boat. Friend knew no more about the capacity of the boat than could be learned by casual observation, while Erickson, who had operated her from the day she was built, must have known her capacity and her tendency to sink at the stern when in motion with a heavy load, if any one did. The possession of respondent not being exclusive, the rule as to the burden of proof, for which the appellant contends, does not apply. 6 C. J. 1158; Bertig Bros. v. Norman, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943; North Atlantic Dredging Co. v. McAllister Steamboat Co., 202 Fed. 181, 120 C. C. A. 395. [2] A careful examination of the statement of facts convinces us that the evidence fully justifies the finding of the trial court that the boat foundered and sank while in charge of the man furnished by the appellant. This being so, it is unnecessary to discuss the law further than to say that under all of the authorities, no cause of action exists in favor of the appellant or against the respondent. Judgment affirmed. The appellant contends that the respondent was a bailee in sole charge of the boat at the time of her loss, and that therefore the burden of proof is upon it to show that the boat was lost without fault or negligence on its part, and, failing in such proof, he (appellant) | ELL, and PARKER, JJ., concur. is entitled to recover. The dispute in the final analysis is therefore one of fact as to who was actually in charge of the boat, and who had the right and duty of looking after her safety, limiting her load, and directing her operations. The boat was not of sufficient size to come within the federal registra tion law, or to require a licensed master, and we must look to the evidence in the case to determine who was in fact her master. MAIN, C. J., and FULLERTON, MITCH [1] We think the evidence fairly establishes that the respondent employed the boat, (103 Wash. 664) SCHULZE v. JONES & RIDDELL et al. (No. 14561.) (Supreme Court of Washington. Oct. 8, 1918.) 1. ATTORNEY AND CLIENT 166(3) — CONTRACTS FOR COMPENSATION-EVIDENCE-SUFFICIENCY. Evidence held to establish contract between attorney and client for compensation by contingent fee upon 50 per cent. basis. 2. ATTORNEY AND CLIENT 166(3)-CON- | ber 1, 1914, respondents wrote to appellant as TRACTS FOR COMPENSATION - EVIDENCE follows: SUFFICIENCY. Where financially embarrassed client desired to prosecute action, and attorneys offered to act for a 50 per cent. attorneys' fee, the client's reply that he preferred to give his note on a 30 per cent. proposition did not negative acceptance of the 50 per cent. proposition, where he later signed and verified the complaint; the attorneys never having accepted the 30 per cent. proposition. Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. In an action by August Schulze against the Buckeye Lumber Company, Jones & Riddell and R. C. Hazen, as plaintiff's attorneys, filed a claim of lien to which Schulze objected. From a final order establishing the lien as claimed, Schulze appeals. Affirmed. Roche & Onstine, of Spokane, for appellant. Jones & Riddell and R. C. Hazen, all of Seattle, for respondents. matter. "In your former letter you asked to be advised what my fee would be for services in this I will take it for a flat fee of $500, 30 per cent. of the amount recovered (less the or I will take a fee of $100, win or lose, and $100 already paid as a contingent fee). will of course expect you to pay the costs in any event. They will probably run about $100 so far as I can see now." I On October 5th appellant answered as fol. lows: ert, I can only promise to pay you of the mon"As I am not in good circumstances at presey collected from the Buckeye Lumber Company. As we are strangers I have had Mr. Folsom to write you which I inclose." The letter from Folsom, which was inclosed, was as follows: "It would be very difficult for him (Schulze) to spare any money as a retainer. He is entirely honest and you can depend on any arrangement you may make with him, but I believe he intends to ask you to take the pro any payment as a retainer. He seems to feel that a letter from me might help him to convince you that his desire to make an arrangehe lacks faith in a lawsuit, but because he has ment with you wholly contingent is not because not enough money to pay either a flat fee or a retainer in connection with a contingent arrangement." On October 10th respondents answered these letters as follows: PARKER, J. This is a proceeding to en-spective litigation on a contingent basis without force a claim of lien, filed by Jones & Riddell and R. C. Hazen, against a judgment rendered in favor of August Schulze and against the Buckeye Lumber Company; the claim being for services rendered by them as attorneys of record for Schulze in the action. The issues were made up by the attorneys' claim of lien and the objections of Schulze thereto, filed in the main action, which were treated as the pleadings in the controversy. The matter was submitted to the superior court upon the merits, as provided by section 138, Remington's Code, resulting in a final order establishing the lien as claimed. From this disposition of the matter, Schulze has appealed to this court. The controversy is over the amount of compensation to be received by the respondents for their services rendered in the action, and as to what the contract between the parties was in that particular; it being conceded that there was a contract from which the amount of respondents' compensation is determinable by computation, judgment having been rendered as the result of respondents' efforts and the amount thereof paid into court by the Buckeye Lumber Company, the judgment debtor. The judgment was affirmed by this court upon appeal. 94 Wash. 520, 162 Pac. 588. The contract is evidenced by letters of the parties, each to the other, and we think also by the conduct of appellant. The controlling facts may be summarized as follows: In the summer of 1914, appellant placed in the hands of respondents, as his attorneys, his claim of several thousand dollars against the Buckeye Lumber Company. becoming apparent that no satisfactory settlement could be made with the lumber company, the matter of suing that company upon the claim, and the expense of such an action, including attorneys' fees, began to be considered by appellant and respondents. On Octo It "In regard to the fee, if you do not feel able the case to pay any fee at the present time, I will take on a straight contingent fee of 50 per cent. of the amount recovered. I shall of course expect you to pay the costs." On October 13th the appellant wrote to respondents as follows: "Your letter of October 10th received. Regarding your fee it seems to me certain for us fer to give you a note for $100 on your 30 per to get a judgment in our favor. I would precent. proposition, all to be taken out of the collection." And on October 23d respondents answered appellant as follows: "In regard to fees, under present conditions I should not care to consider the note proposition, and think we had better go back to a straight 50 per cent. contingent fee. Please send me your check for $25 to cover initial costs." These letters of respondents, it will be noticed, are in the first person. This evidently is accounted for by the fact that they were written by one of them, but manifestly in the interest of all. Thereafter respondents prepared and sent to appellant a complaint looking to a commencement of the action, which complaint, after being signed and sworn to by appellant, was returned to respondents on November 13th, and thereupon the action was commenced by respondents. Thereafter some correspondence passed between appellant and respondents looking to the agreeing upon the compensation to be $100 retainer and 30 per cent. of the amount of the recovery; in other words, looking to a change of the contract evidenced by the let ters, and the signing and verifying of the complaint by appellant and sending it to respondents to commence the action. This $100 retainer and 30 per cent. proposition, however, manifestly was conditioned upon the appellant actually paying the $100 retainer in cash within a specified time, long before the trial of the action, which was never done. [1] It seems plain to us that the minds of the parties met upon the straight 50 per cent. basis. This, we think, is rendered plain by the correspondence prior to the signing and verifying of the complaint, and by appellant sending the complaint, signed and verified, to respondents. All that was said in the correspondence thereafter was, to our minds, only looking to a change of the original agreement of the parties, which change, we think, clearly was never brought about. HOLCOMB, J. Respondent and appellants entered into a written contract as follows: "This agreement, made and entered into this 23d day of March, 1912, by and between the Cook-Reynolds Company and Lee-Wier Company, and F. C. Henneberg, to wit: It is agreed and understood that in case the sale of the 578 acres of land located in Fergus county, Mont., to John A. Schmidt of Spokane, Wash., is [2] Counsel for appellant argue that his closed according to the contract entered into statement in the letter of October 13th that between the Cook-Reynolds Company, and said he preferred to give a note for $100 on the John A. Schmidt March 13, 1912, there will be 30 per cent. proposition negatives the accept-due the Lee-Wier Company and F. C. Henneberg the sum of ($1,445) fourteen hundred ance by him of the 50 per cent. proposition. and forty-five dollars, payable by the CookIt may be conceded that this does suggest Reynolds Company on or before July 16, 1913, as follows: Seven hundred and twenty-two that he preferred that proposition to the 50 But the trouble is 50/100 ($722.50) when the Cook-Reynolds Comper cent. proposition. pany has sold that certain mortgage of $5,000 to be received from the said John A. Schmidt that proposition was never accepted by respondents. And we think appellant's action, according to contract, and ($722.50) seven hundred twenty-two 50/100 dollars, when the lot in thereafter signing and verifying the comnumbered 6 in block 8. Sinto addition to Spoplaint and sending it to respondents, in ef- kane, is sold by said Cook-Reynolds Company. fect authorized them to commence the action, It being understood and agreed that the Cookand was an acceptance of the 50 per cent. Reynolds Company shall pay one-half of each of the above-mentioned payments to the Leeproposition. As was said by Justice Holmes, Wier Company and one-half of each of the speaking for the Supreme Court of Massa- above-mentioned payments to F. C. Henneberg. chusetts, in Hobbs v. Massasoit Whip Co., It being further agreed, however, that in case the said sale of said land above mentioned is not 158 Mass. 194, 33 N. E. 495: consummated and closed according to said contract with John A. Schmidt then in that case The proposition stands on the general principle that conduct which imports acceptance or assent is acceptance or assent in the view of the law, whatever may have been the actual state of mind of the party-a principle sometimes lost sight of in the cases.' It seems quite clear to us that the order establishing the lien claimed by respondents must be affirmed. It is so ordered. MAIN, C. J., and FULLERTON, TOLMAN, and MITCHELL, JJ., concur. (103 Wash. 685) HENNEBERG v. COOK et al. (No. 14850.) (Supreme Court of Washington. Oct. 18, 1918.) 1. BROKERS 43(1)-AGREEMENT REQUIRED TO BE IN WRITING. An agreement that in case of sale to S., in accordance with contract of a certain date entered into between him and C., of 578 acres of land located in a certain county, there would be due, etc., was in effect a promise to pay for past services, not controlled by Rem. Code 1915, 5289, as to agreements authorizing brokers to sell realty being in writing. there will be no commission due either Lee-Wier Company or F. C. Henneberg and this agree ment shall be null and void. "Signed this 23d day of March, 1912. by George W. Cook, its treasurer of the Cook-Reynolds Company and Lee-Wier Company and F. C. Henneberg. Lee-Wier Co., by E. T. Lee. F. C. Henneberg. The Cook-Reynolds Co., by G. W. Cook, Treasurer." This suit was brought on the contract to recover the last half of respondent's commission of $472.75, with interest. Respondent testified in his own behalf that the contract for the sale of the Montana land was fulfilled by sale to Schmidt, but no attempt was made to prove the description of the 578 acres of land in Fergus county, Mont., nor was evidence offered to show that the sale contract in appellants' possession contained a description of the land. It is alleged that appellants partly performed the commission contract by paying one-half of the commission and that they refuse to pay the last half thereof. Appellants alleged and contended (1) that 2. PLEADING 339-ABANDONMENT OF DE- the commission contract was void on account FENSE-FAILURE TO OFFER EVIDENCE. In suit to recover balance of commission for closing sale of realty, held, that defense that commission was not payable, because sale of certain lot had not been consummated, was a of the statute of frauds, and (2) that the lot taken in the trade had not been sold, and for that reason the last installment of commission was not due. At the close of re spondent's testimony appellants moved for, statute of frauds, as amended in 1905, section judgment, which was denied. Appellants refused to introduce any evidence, and judgment was granted to respondent. Appellants assign that the court erred: (1) In refusing to sustain appellants' demurrer to the complaint; (2) in refusing to grant judgment in their favor upon motion made at the conclusion of respondent's testimony; (3) in refusing to find that the contract sued on is within the statute of frauds and that no sufficient description of the land, for the sale of which respondent is claiming a commission, is set forth in the contract; and (4) in refusing to find that under the terms of the contract there was nothing due respondent at the time suit was commenced, for the reason that the terms thereof as to the sale of the lot in Spokane had not yet been complied with. [1] The first three assignments may be considered together, the controlling question being whether the commission contract is controlled by the statute of frauds. Rem. Code, § 5289, is as follows: 5289, supra, was for the purpose of preventing frauds instead of promoting the same. The rule established in the Rogers and Nance Cases, supra, should not be extended to cases where the services of a broker have been completed, all the parties to the sale contract have fully performed, a written promise to pay the broker for his service has been signed by the party to be charged, and there existed no necessity for specific performance to complete the sale. [2] Appellants' fourth assignment of error relates to the time when the commission is payable. The second defense, that the lot taken in trade had not been sold and for that reason the last installment-that sued on-was not due, was not supported by any evidence, and must be considered abandoned when appellant refused to offer evidence in support thereof. On examining the contract it is plain that all the commission is due on or before July 16, 1913, and the subsequent provisions must be considered to have been effectuated as long as they are within this period. The sale of the lot was within the control of appellants. If it was not sold, such fact was a matter of affirmative defense, and proof on the part of the party within whose control it was, even if it can be conceded that, under the provision of the contract for payment within a certain time, the party charged therewith could indefinitely postpone its payment by indefinitely postponing the sale of its lot. There is no error. Affirmed. MITCHELL, the result. ROCHE et al. v. MADAR et al. (104 Wash. 21) (No. 14798.) Oct. 14, 1918.) "In the following cases specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, that is to say: (5) An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission," It will be seen that the contract herein for compensation or commission for the services rendered by the agent or broker to sell or purchase real estate was in writing. ReFULLERTON, MOUNT, spondent proved that he had completed the MACKINTOSH, and TOLMAN, JJ., concur. services and had received part of the com- MAIN, C. J., and CHADWICK, J., concur in mission. If the commission contract had contained a definite description of the property sold, respondent would have been under the same obligation to prove that he had performed the contract. Appellants cite us to Rogers v. Lippy, 99 Wash. 312, 169 Pac. 858, L. R. A. 1918C, 583, and Nance v. Valentine, 99 Wash. 323, 169 Pac. 862, but the case at bar can readily be distinguished from these cases, in that it refers to the sale contract entered into on March 13, 1912, between appellants and Schmidt, and provides that, upon closing the contract, there will be due respondent et al. $1,445, payable by appellants on or before July 16, 1913, upon specified contingencies. Thus it will be seen that a sale contract had been entered into, and that, when the same was fulfilled accordingly, certain amounts were due respondent to be paid within a time certain. This contract was entered into March 23, 1912, ten days subsequent to the making of the sale contract, and was in effect a promise to pay for past services. Muir y. Kane, 55 Wash. 131, 104 Pac. 153, 26 L. R. A. (N. S.) 519, 19 Ann. Cas. 1180. It was manifestly so construed by appellants when they paid the first installment due for the service. Furthermore, the 1. SPECIFIC PERFORMANCE 121(4) — EVIDENCE-EMPLOYMENT OF ATTORNEY-WITH DRAWAL. pursuant to contract employing attorneys, evi- SERVICES-CONSEQUENTIAL. 140–Value of Where attorneys under contract of employment prepared and filed pleadings and extensively briefed cases and succeeded in setting aside state, their services will not be regarded as indefaults, necessarily making trips to another consequential and trivial. 3. SPECIFIC PERFORMANCE -VARIANCE. 117-PLEADING tract of, and an entering upon, the duties of Where attorneys' complaint alleged a conemployment, and a continuance therein until wrongful discharge by defendants, and the proofs indicated withdrawal of one attorney and his subsequent re-employment under the same contract and a later wrongful discharge of both attorneys, there was neither a fatal variance nor proof of a contract different from the one 4. ATTORNEY AND CLIENT 133-CONTRACT 5. SPECIFIC PERFORMANCE OF REMEDIES. —6—MUTUALITY The doctrine of mutuality of remedies applies only to executory contracts and not to a fully performed contract of employment of attorneys, where nothing remains to be done except payment of the agreed compensation in corporate stock. 6. ATTORNEY AND CLIENT 143-AGREE MENT FOR COMPENSATION-VALIDITY. Under Rem. Code 1915, § 474, providing that the measure and mode of compensation of attorneys shall be left to the agreement of the parties, where clients fairly and equitably agreed to pay as a fee a certain amount of corporate stock, the attorneys having fulfilled the contract were entitled to enforce specific payment thereof. 7. SPECIFIC PERFORMANCE SUE-LIMITATION. 105(3)-TIME TO Where attorneys sued for specific performance of a contract for an agreed fee to be paid in corporate stock well within the statute of limitations, and the record fails to show some special reason why a shorter period should be enforced, plaintiffs were not guilty of laches. Department 1. Appeal from Superior Court, Spokane County. Action by John H. Roche and another against John Madar and wife and another. Judgment for plaintiffs, and defendants appeal. Affirmed. Allen, Winston & Allen and B. B. Adams, all of Spokane, for appellants. F. C. High smith, John H. Roche and F. W. Girard, all of Spokane, for respondents. and Roche continued to perform services until both counsel were finally discharged by John Madar, acting on behalf of himself and the other appellants. The causes referred to in the written contract were conducted by other counsel and brought to a final determination. The present action was brought by respondents to recover the stock and cause its transfer on the books of the corporation. The trial resulted in a judgment in favor of the respondents, and it is from this judgment that the present appeal is prosecuted. [1, 2] The appellants first assign error upthere was no re-employment or reinstateon the findings of fact. It is contended that ment of the contract after Roche had announced his intention to withdraw from the employment. But without entering upon an extended review of the evidence, we think it convincing upon the question. The fact was not only testified to by both of the reinterested witnesses who testify to services spondents, but they are corroborated by disperformed by them in the causes after the letter of withdrawal was written. On the other side the testimony is practically that of John Madar alone, and he is contradicted in certain particulars by certified copies of the records taken from the causes in the Idaho courts. Again, it is said in this connection that the services performed were inconsequential and trivial. But, to the contrary, we think the showing is that the services were consequential and valuable. Not only were pleadings prepared and filed and the causes extensively briefed, but when the employment was entered upon the appellants were in default in certain of the actions which the respondents were able to have set aside, the work of so doing requiring several trips from the attorneys' place of residence in this state to the courts in Idaho where the causes were pending. FULLERTON, J. On September 13, 1911, the appellants employed the respondents, who are attorneys at law, to represent them and prosecute to a final determination cer[3] The second contention is that there is tain actions then pending in the courts of the state of Idaho, in which the appellants a fatal variance between the pleadings and were actual parties or parties in interest. the proofs. In their complaint the respondThe contract of employment was in writing ents alleged the contract of hire, their enterand distinctly specified the services to be ing upon the duties of the employment, and performed. As a consideration for the serv- their continuance therein until their wrongices, it was agreed that the appellants ful discharge by the appellants. The proofs should turn over to the respondents, on the were, as has been indicated, a withdrawal final determination of the actions, 125,000 by one of counsel, his subsequent re-employshares of the capital stock of the corporation, ment under the same contract, and the suband cause the shares to be transferred to the sequent wrongful discharge of both counsel. respondents on the books of the corporation. This we are clear is not a fatal variance, The respondents immediately entered upon nor proof of a different contract from that the performance of the services and contin- alleged in the complaint. The terms of the ued therein for a considerable time, when a contract remained the same. If there was difficulty arose between the respondent at any time a severance of the original reRoche and the appellant John Madar, caus- lation, there was also a resumption of that ing Roche to write a letter declining to con- relation, and the rights and liabilities of the tinue longer in the employment. This difficul- parties remained after the resumption as ty, according to the contention of the respond- they were originally. It was competent thereents and their witnesses although disputed fore for the respondents to declare upon the by the other side, was afterwards adjusted,' original contract, and they are not to be |