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59 Colo. 261

Bolles v. O'Brien

Supreme Court of Colorado

Decided March 1, 1915

Supreme Court of Colorado · decided 1915-03-01

<p>T. "Evidence — Competency. Plaintiff, in an effort to contradict a witness for defendant, was allowed to show that in the trial of another action, involving a different issue, another witness, not shown to be -dead or beyond the jurisdiction;,had-testified to facts disclosing a knowledge on his .part of the particular matters in controversy in the pending action, and that they were otherwise than as testified by defendant’s witness. Held error. (264-' 267.) r<¡¡... b b .... .jw-n'lL , • ' ■ ,</p> <p>In an action by an attorney for fees, as tending to show the experience, skill and ability of the attorney, evidence was received that the client, in a transaction long since closed, and in respect of which the attorney was not demanding compensation, had, upon one investment of $4,200, realized in eighteen months a profit of $100,000. Held incompetent and prejudicial. (269.)</p> <p>The fee received by the attorney in sueh past transaction was also inadmissible. (270.)</p> <p>The. attorney and the client had entered into a contract, in the nature of a partnership, touching certain investments in lands in Florida. The contract had been annulled by the judgment of the Supreme Court of that state, and the attorney was sueing upon a quantum meruit for the value of his services to the client in the matter of the Florida investments. Held that conversations of defendant relating to the contract so annulled and the conduct of the parties thereunder were inadmissible. (272.)</p> <p>Conversations between the attorney and the client as to the compensation of; the latter, which conversation led up to the contract between them, afterwards annulled by the court of Florida, he'd admissible, as an. admission of the client as to the value of the attorney’s services. The subsequent reduction to writing, and that the court of Florida had declared it invalid, not being sufficient to exelude it. (272-276.) 1 ■ ■ ■</p> <p>The attorney demanding compensation for his services to the client in the purchase and sale of lands in Florida, it was held competent for the plaintiff to show the value of the client’s holdings in Florida, purchased and partly disposed of during the attorney’s employment. The magnitude of the enterprise, and the results obtained, being factors in determining the measure of the attorney’s compensation. (277, 278.)</p> <p>So the amount received by the c'ient from a corporation which he had organized for dealing in the Florida lands. (278.)</p> <p>2. Attorney and Client — Non-Professional Services Rendered by the Attorney, a. y., in a business capacity, and incident to the matters.and causes in which he acts professionally, may be allowed for and recovered by the attorney in the same action in which he demands compensation for his professional services. (277.)</p>

Cited by 2 later decisions — most recently April 1982

2 district ·

Good law ✅— No negative treatment on recordhow we know

Decided 1915-03-01

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Teller, J.,

¶1concurring specially:

¶2I concur in the conclusions of the opinion in this case except as to the question of the admission in evidence of the .conversation between the parties on the morning on which the, partnership agreement was executed. That conversation *279was not incompetent because the agreement was subsequently reduced to writing, but the objection that it was not relevant was good and should have been sustained.

¶3The important fact is not that this conversation, related to the plaintiff’s compensation, but that it related to compensation as a partner, who should .perform not merely the services of an attorney, but of an owner of an interest in the business, one who might be required to do far more than any attorney would be expected to do. He was to share in the profits, and bear a portion of the losses. He was to give his time and services for a period which was wholly indefinite, and when the enterprise had been carried to completion he was to have his share of the profits, if the business proved ultimately profitable; and if it proved to be a losing venture he must respond with a share of the losses to be paid.

¶4That.being the matter to which the conversation pertained, how could it aid the jury to determine the value of plaintiff’s services during the term he was employed? How could they say from this testimony what value the defendant placed upon the services which plaintiff had rendered, and would render, as an attorney, up to the time when his employment terminated? Given an estimate of the value of services in a stated capacity for a certain period, it may be properly assumed that services in that capacity, for a longer or a shorter period will be worth a proportional amount.

¶5Here, however, the estimate is as to services in a widely different capacity, and for no period of time which can be even approximately estimated. How then can it be of any value on the issue on trial ? The fact that it was an admission against interest, and hence admissible in a proper case, can not make it admissible in this case if it is not relevant to the issue.

¶6The. only effect the testimony could have would be to lead the jury to believe that the plaintiff was entitled to a *280large share of such profits as they might find had accrued up to the time of the trial.

Decided March 1, A. D. 1915.Rehearing granted April 5, A. ■ I). 1915.Judgment reversed on rehearing July 6, A. D.1915;

¶7Its admission was, therefore, highly prejudicial to the defendant, and it should be so held.

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