Opinion
Rehearing Denied Feb. 14, 1973.
Page 400
Holley, Boatright & Villano, Roger D. Witt, Wheat Ridge, for plaintiff-appellee.
Epstein, Lozow & Preblud, P.C., Donald L. Lozow, Denver, for defendant-appellant.
SMITH, Judge.
James S. Stone filed this action against Labco Construction Company and the Western Casualty and Surety Company of Fort Scott, Kansas, for the value of professional services allegedly rendered defendants as an expert consultant in previous litigation. Plaintiff alleged he had been hired by defendants' counsel, Lawrence A. Atler and Donald L. Lozow. Plaintiff prayed for judgment against defendants, jointly and severally, in the amount of $1,350, the balance due and owing from professional services rendered in the amount of $1,920, plus interest and costs. The court entered a default against Labco, which did not respond to the complaint. After trial to the court, judgment was entered against Western and Labco in the amount of $1,350, plus costs and interest from the date of judgment. Although Western filed a third-party complaint and various other pleadings, Western's appeal to this court concerns only the findings and conclusions of the court pertaining to plaintiff and Western.
The court, sitting without a jury, found the following: That Labco had constructed a nursing home; that Western had issued Labco's performance bond for the job; that the owner of the nursing home, Norman Enterprises, filed suit against Labco and Western; and that Labco had agreed to indemnify Western and to pay all costs of defending the action. The court determined that attorneys Lawrence A. Atler and Donald L. Lozow had entered a general appearance on behalf of Western and that Western knew that Labco was also being represented by these attorneys. The court further determined that Western, as well as Labco, benefited from plaintiff's work for those attorneys. Western was found to have contacted the above attorneys to ascertain the status of the case and had, in the words of the court, 'in all ways ratified the employment.'
On appeal, defendant initially asserts that there was no evidence to substantiate the trial court's finding that an agency relationship existed between the attorneys and Western. However, Albert Coffey, claims manager for Western at the time of the Norman Enterprises' law suit, testified that it was his job to ascertain the status of the suit and that Western, through his office, was aware that Western and Labco were being represented by Lozow and Atler. It was Coffey's testimony that Western did not object to being represented by these attorneys. An attorney has a general implied authority which includes doing on behalf of his client all acts, in or out of court, which affect only the remedy and which he deems necessary or incidental to the transaction or management of the suit or to the accomplishment of the purpose for which he has been retained. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370. It follows that Lozow and Atler had the apparent authority to hire Stone and obligate Western for his fee. Hence, there was sufficient evidence in the record to support the court's conclusion that the acts of the attorneys were binding on Labco and Western.
Defendant argues that the trial court erred in refusing to grant a new trial on the basis of newly discovered evidence. At the hearing on the motion for new trial, defendant's attorney offered an affidavit from the plaintiff which he had found in his files after trial. The affidavit contained an admission that at all times plaintiff was looking to the attorneys that hired him for his fee.
A new trial may be granted on the basis of newly discovered evidence where the party making the application could not have, with the exercise of reasonable diligence, discovered and produced the evidence at trial, C.R.C.P. 59(a)(4). In order for newly discovered evidence to justify the granting of a new trial, it must be material to some issue before the court, the resolution of which would probably change the result. American National Bank v. Christensen, 28 Colo.App. 501, 476 P.2d 281. In addition, the granting of a new trial because of newly discovered evidence is a matter lying within the discretion of the trial court, and the denial of such a motion is not error unless an abuse of that discretion be shown. Francis v. O'Neal, 127 Colo. 432, 257 P.2d 973.
The question of to whom plaintiff may have been looking for payment is therefore immaterial. Even if the proffered evidence met the other requirements for newly discovered evidence, the substance of the affidavit is immaterial to the determination of the case. Consequently, we find no abuse of the trial court's discretion.
Plaintiff cross-appeals challenging the trial court's refusal to grant interest from the date when plaintiff's fee became due to the date of the entry of judgment. The legislature has provided that creditors shall be allowed to receive 6% Interest per annum for all monies after they become due 'on any bill, bond, promissory note or other instrument of writing . . ..' C.R.S.1963, 73--1--2. It has been established that the awarding of interest is controlled by the statutory language which must be strictly construed. Hunter v. Wilson, 147 Colo. 36, 362 P.2d 553. The record effectively demonstrates that plaintiff presented defendants with a bill, dated February 19, 1968, for $1,350. The complaint alleged the amount of the bill and that this amount was 'agreed and reasonable.' This was not challenged by defendants. It was error for the court not to have allowed plaintiff interest from the due date of the bill. Western Oil Fields, Inc. v. Coit, 29 Colo.App. 567, 487 P.2d 562.
We affirm the judgment of the trial court, except as to interest. In regard to the awarding of interest, we reverse and remand with directions to award plaintiff interest from the date of the bill, February 19, 1968.
SILVERSTEIN, C.J., and PIERCE, J., concur.