HUGH T. CUTHBERT, Doing Business Under the Name and Style of H. T. Cuthbert & Co., Appellant,
THE CITY OF DOUGLAS, a Municipal Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Cochise. Jesse A. Udall, Judge. Judgment affirmed.
Mr. Terrence A. Carson, for Appellant.
Mr. Henry W. Beumler, City Attorney, for Appellee.
[58 Ariz. 360] ROSS, J.
Under the terms of a contract between the City of Douglas and Hugh T. Cuthbert, a certified public accountant, entered into August 10, 1931, it was agreed the city would pay or allow Cuthbert 50% of any recovery from the County of Cochise of tax penalties and costs due from said county to the city; that Cuthbert would, at his own expense, audit the tax books and records of the county and determine what, if any, sums were due from the county to the city and certify a statement thereof to the city, when the city would undertake, by legal proceedings or otherwise, to collect from the county at the expense of Cuthbert "excepting attorney's fees."
Under such contract, some time before November, 1934, an action against the county was brought by the then City Attorney of the City of Douglas, which resulted in a recovery, on June 6, 1938, of $4,293.42, one-half of which the city paid to Cuthbert, who accepted such sum without making any claim for expenses or attorney's Fees.
The present action by Cuthbert against the city was filed December 7, 1939, and is for the recovery of $550 which he paid attorney W. G. Gilmore to prosecute the action against Cochise County. The lower court gave judgment for the defendant, and plaintiff has appealed. There is no dispute but that Cuthbert paid the $550 to Gilmore, the only question being as to [58 Ariz. 361] whether he may, under the contract, recover such sum from the city.
On June 27, 1936, the City Council of defendant passed a resolution in words and figures as follows:
"Mayor Tuttle stated the purpose of the meeting was: First, for the purpose of authorizing Attorney W. G. Gilmore to appear in behalf of the City of Douglas in the suit against the Treasurer of Cochise County for the recovery of delinquent tax penalties.... Mayor Tuttle stated that Attorney W. G. Gilmore had been retained by Mr. H. T. Cuthbert to represent him in his suit against the Treasurer of Cochise County to recover delinquent tax penalties and that in the absence of a City Attorney and in behalf of the interest of the City of Douglas in the matter, he suggested that the Council authorize Mr. Gilmore to appear for the City of Douglas in the suit providing that all expenses incurred be borne by Mr. Cuthbert. On motion of Alderman Jones, seconded by Alderman Bauman, and unanimously carried, Attorney Gilmore was authorized to represent the City of Douglas in the suit providing all expenses be borne by Mr. Cuthbert."
The record shows that Gilmore, by appointment on July 1, 1937, became City Attorney for the City of Douglas and continued to act in such capacity until July 11, 1938.
It seems to us the city's liability to pay plaintiff must be determined mainly from the language of the contract between plaintiff and the city, together with the City Council's resolution concerning Gilmore's employment, and a common understanding between the parties as disclosed by the evidence. The contract quite clearly places the obligation to pay all the expenses in connection with the collection from Cochise County upon the plaintiff "excepting attorney's fees." It is, of course, the theory of the plaintiff that, since the contract did not require plaintiff to pay attorney's fees, it was the duty of the city to furnish [58 Ariz. 362] an attorney to prosecute the action, and that he could employ and pay such attorney a fee and thereafter collect it back from the city. Although it be conceded that the contract bound the city to furnish an attorney, it does not if one is employed require it to pay such attorney a fee for his work, the city generally having a regular attorney to look after its litigation. It appears that the action against the county was filed by the city's attorney (a Mr. White) some time
before Gilmore was employed; that Gilmore was employed later by plaintiff, with the consent of the city, to prosecute the action, because the city attorney who filed the action had vacated that office, ...