Despite the plain language of the relevant agreements and the Ninth Circuit's decision in Hahn, Appellant nonetheless argues that Oregon caselaw supports the creation of an attorney's lien in these circumstances. In support, Appellant primarily cites Potter, 335 Or. 209, 63 P.3d 1172, and Carson v. McMahan, 215 Or. 38, 332 P.2d 84 (1958). Appellant's reliance is misplaced, as these cases do not support her argument.
Banaitis does not undermine the holding in Hahn. Brann argues that her argument is supported by a number of other cases, including Carson v. McMahan, 215 Or. 38 (1958), and Robinowitz v. Pozzi, 127 Or. App. 464 (1994). Carson does not support Brann's argument. That case was a dispute between the estates of two lawyers, Carson and McMahan. McMahan had hired Carson to work with him on a case.
Without an agreement to the contrary, joint venturers share profits equally. Dean Vincent, Inc. v. Russell'sRealty, Inc., 268 Or. 456, 465, 521 P.2d 334 (1974); see also Carson Admx. v. McMahan Admr., 215 Or. 38, 332 P.2d 84 (1958). Defendant would have us read his letter of April 22 as a specific agreement to the contrary; that is, that each party would receive only that part of the fee proportional to the work each contributed.
The method and amount of financing, the most important element of the promise as claimed by plaintiffs, was never finalized. The rule stated in Reed is adhered to in Carson, Admx. v. McMahon, Admr., 215 Or. 38, 332 P.2d 84, 73 A.L.R.2d 981 (1958). 1(b). Next, plaintiffs' urge that the negotiations between the parties on December 26th and 27th, 1961, reached the level of a valid bilateral contract. An exhaustive analysis of the record convinces me otherwise.
More specifically, an issue presented by a stipulation has been held subject to determination, even though not presented by the pleadings, and all questions of pleading are waived by a stipulation that the case shall be considered at issue on a particular question. Miller v. Phoenix Insurance Company of Hartford, Conn., 191 Minn. 586, 254 N.W. 915 (1934); People ex rel. Hughes v. Universal Service Association, 365 Ill. 542, 7 N.E.2d 310 (1937); Bemer v. Bemer, 152 Cal.App.2d 766, 314 P.2d 114 (1957); Wolf Corp. v. Louis, 11 Ariz. App. 352, 464 P.2d 672 (1970); Carson v. McMahan, 215 Or. 38, 332 P.2d 84 (1958); Roth v. Drainage Improvement District No. 5 of Clark County, 64 Wn.2d 586, 392 P.2d 1012 (1964); Harbison v. Shook, 41 Ill. 141 (1866). In Harbison a variance between the pleading and proof was held to have been waived by a stipulation.
Plaintiff cross-appeals from that portion of the judgment refusing to grant an accounting to plaintiff for the contingent fee cases. Plaintiff argues that, in the absence of a specific agreement as to the division of a contingent fee, the fee is to be divided equally and cites Carson Admx. v. McMahan Admr., 215 Or. 38, 332 P.2d 84 (1958) and Fitzgibbon v. Carey, 70 Or. App. 127, 688 P.2d 1367 (1984), rev den 298 Or. 553 (1985). However, the cases plaintiff cites are fundamentally different from the situation here; in both cases, the attorneys shared in the representation of a client at the same time and were associated with the case to its conclusion.
A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to legal rights and duties of the respective parties. Carson Admx. v. McMahanAdmr., 215 Or. 38, 332 P.2d 84, 73 ALR2d 981 (1958); 1 Anderson, Declaratory Judgments 588, § 253 (2d ed 1951). " 'The existence of an "actual controversy relating to the legal rights and duties of the respective parties," made by statute a condition of the right to declaratory relief, is shown by a pleading which states facts from which it is manifest that there is such a controversy, though the plaintiff does not allege that it exists.
The question Gygi asked Olsen was directly related to the contract, for it was posed as of the time Gygi took the contract to Olsen for the latter's signature. We do not consider Carson Admx. v. McMahan Admr., 215 Or. 38, 332 P.2d 84, 73 ALR2d 981 (1958), urged by petitioner, to be in point because the parties here have a specific contract, and in Carson it was held there was none. Regardless of the additional evidence which we are considering, we conclude that petitioner's claim has not been sustained.
83 C.J.S. Stipulations § 24(b) (5). Where parties stipulate as to the issues to be tried, the pleadings become immaterial. Carson v. McMahan, 215 Or. 38, 332 P.2d 84, 73 A.L.R.2d 981 (1958); see also, Glitsos v. Kadish, 4 Ariz. App. 134, 418 P.2d 129 (1966). We are of the opinion that paragraph five of the stipulation hereinabove set forth clearly injected the issue of setoff into the case.