135 Mo. App. 306 | Mo. Ct. App. | 1909
(after stating the facts). — We have stated fully the substance of the pleadings in this case because, as it went off on a demurrer to plaintiff’s evidence, in order to determine whether or not a prima facie case was established on the issues of fact between the parties, it is essential to know on what facts issues were joined and what were either admitted or stated alike by both parties. Both alleged the money in controversy came into defendant’s hands in his capacity of attorney for plaintiff in certain litigation. The petition charges a breach of defendant’s duty as attorney, in that he compromised the litigation without the knowledge or authority of plaintiff and caused a decree to be entered against plaintiff’s interest and right. It further states that as part of the settlement, defendant received a check for fl,250 for plaintiff, on ■which defendant collected' the money and retained it, though the same rightfully belonged to plaintiff. The petition may be regarded as denying defendant’s right to retain the money for two reasons; because it was paid to him for plaintiff and in equity and good conscience, belongs to the latter; and because, further, whatever lien on the money for his fees or right to re-' tain the whole in payment of his fees, defendant otherwise might have possessed, does not exist because of his breach of duty as attorney; in other words, his failure to comply with his implied contract with plaintiff to attend faithfully to the latter’s interest. The contract of employment between the parties was not disclosed in the petition, but was copied in the answer, and the effect of the answer is that under its terms defendant was entitled to retain the sum in controversy for his compensation, not only in the case referred to in the petition against Locke and Atkinson, but also in two other cases mentioned in the contract. As to
If the contract between plaintiff and defendant was properly entered into it was not illegal, but on the contrary was expressly authorized by a statute of the State. This statute says, in effect, that in all suits in equity and actions at law, it shall be lawful for an attorney, either before or after a suit is brought, to contract with his client for a certain percentage of the proceeds of the' client’s suit or action or the settlement of it, either before the institution of the action or at any stage thereafter. [Laws 1901, p. 46, Ann. Stat. Mo. 1906, sec. 4937-2.] Said statute gives an attorney a lien on the proceeds realized by a judgment or settlement, on notice to the adverse party; but in the case before us, the contract itself, by its very words, created a lien in favor of the defendant on the proceeds of the compromise.
It is taken for granted the stipulation in the contract between plaintiff and defendant, that plaintiff would accept no compromise which was not agreeable to defendant, was void because against public policy. On this assumption the invalidity of the entire contract is argued, and an authority from Ncav York is cited as peculiarly in point on the proposition for the alleged reason that our Attorney’s Lien Act was copied from a New York statute. The first section of our Act was derived from New York (Taylor v. Transit Co., 198 Mo. 715, 725); but the second section, which provides for notice of the lien to be given by the attorney to the adversary party, whereby the latter is prevented from settling the cause to the attorney’s detriment, is an en-
The facts on Avhich possibly plaintiff intended to found a charge of duress by defendant in obtaining plaintiff’s signature to the instrument, though they might be sufficient, if proved, to influence a court of equity to set the instrument aside as having been induced by unfair means, fall short of showing duress. These averments, whether they savor of fraud or duress, were wholly unsupported by proof; for even the plaintiff’s testimony discloses nothing in Robertson’s behavior indicating a purpose to take advantage of an exigency of the case to coerce plaintiff into signing the contract. The statute authorizes attorneys and clients to enter into contracts for a contingent. compensation to the attorney, either before or after a legal proceeding is instituted; but plaintiff’s .counsel insists, nevertheless, that- an attorney can be given nothing under such a contract until he has proved affirmatively, the client was not induced to agree by fraud or improper practice which would constitute an abuse of the con
As the contract gave the defendant a lien on the sum collected, he may lawfully hold such portion of the sum as his fee would amount to under the contract, if he performed the obligation assumed by him; and this is conceded. But plaintiff says defendant failed, to perform his duty as attorney, and broke the obligation assumed in the contract of employment, by settling the litigation with Atkinson and Locke without plaintiff’s consent and contrary to his instructions. Plaintiff swore that far from authorizing the settlement, he had told Robertson to make no compromise; and if this is true, the arrangement with Atkinson and Locke could not have stood a moment against a motion filed during the term to set aside the decree or a bill in equity filed afterwards. And if plaintiff had repudiated the settlement, very likely defendant’s conduct in making it, would have been cause for refusing him the compensation to which his contract entitled him for faithful performance of his duty. If plaintiff was dissatisfied, adequate remedies were available by which to retrieve his rights. [Walker v. Bolton, 53 Mo. 405; State v. Clifford, 129 Mo. 492.] He invoked none, but instead sought benefits under the settlement after he had known its terms for more than two years; as probably he had received benefits before; for. an evasive reply is made to the averment of the answer that plaintiff had received an annuity under the settlement for two years. The replication said “plaintiff has never received such an annuity for seven and one-tenth
But it does not follow because plaintiff ratified the settlement that he ratified the arrangement between Robertson, Grace Beagles and Atkinson and Locke, by which Robertson was to get $1,250 and keep it for his fee. Accordifig to plaintiff’s testimony he was no party to said arrangement; and Robertson’s right to retain the money was a question between plaintiff and Robertson and not between Robertson, plaintiff’s children and Atkinson and Locke, his adversaries in the suit. Yet plaintiff could not ratify the settlement without entitling defendant to compensation for services rendered in proportion to what was gained; for the contract of employment said that if the litigation with Atkinson and Locke was compromised, defendant was to “still have one-fourth so gained.” The position of plaintiff’s counsel is that, even though plaintiff accepted the benefits of the compromise, if the defendant entered into it without authority and did not protect plaintiff’s interests, but sacrificed them for the benefit of his children, then defendant should be denied com
“Where an agent performs acts in excess of his authority or without any authority at all, he undertakes to do for another that which he has no authority to do and thereby incurs a liability either to third parties by reason of the unauthorized acts, or to the principal for any loss occasioned thereby. Therefore unless the agent is in some manner relieved he has put a heavy responsibility upon himself. But as we have seen that a subsequent ratification is equivalent to a prior authority, and -as the agent would be relieved from all liability where he had prior authority to do an act, so if the principal with full knowledge of all facts, ratifies the' agent’s unauthorized acts, the latter is released from liability thereon. By such ratification the principal takes upon himself all the responsibility for the acts or-contracts he has thus ratified, as he would have had had he previously authorized them; and he thereby releases the agent from all responsibility thereon, except in so far as the agent may have been responsible had the acts or contracts been previously authorized. Nor after ratification can the principal
Plaintiff’s counsel sa,y ratification did not preclude plaintiff from suing for money received by defendant for plaintiff’s use and point to a remark in the text work from which we have quoted, that after ratifying an agent’s act, the principal may recover money received by the agent for the use of the principal. No doubt he may if the agent has no lien on it or right to retain it for an indebtedness the plaintiff owes him. But what plaintiff’s counsel assert is that defendant, by acting without authority and against instructions, forfeited his right to any portion of the proceeds of the settlement. In effect,-this is nothing else than an attempt to ratify what defendant did without authority, yet hold him answerable for exceeding his authority; which according to all writers on the law of agency, and all the cases we have examined, cannot be done. A controlling decision on the very point is Beall v. January, 62 Mo. 434. That plaintiff had received as a broker -or commission merchant, consignments of goods to sell according to instructions given. He sold the goods and furnished statements of his doings to the defendant and on a settlement, the defendant executed promissory notes tó him. The action was on these notes, and the defense was fraud in their procurement and want of consideration. The averments in the answer charged both a breach of instructions in making the sales, and fraudulent misrepresentations in reporting the same, whereby the defendant was induced-to give the notes. As to these averments the opinion of the Supreme Court said, that if nothing more was alleged than selling against the defendant’s orders, as the defendant had afterwards ratified the sales, the answer would state no defense
A serious question might arise regarding the burden of proving what sum defendant was entitled to keep as compensation — whether the burden was on him to prove the amount in his hands did not exceed what he was entitled to retain, or on the plaintiff to prove it did. This point has not been raised and we have not examined it, because the reasons for which the propriety of the lower court’s ruling is assailed, relate solely to the contention that the court erred in not treating ■ defendant’s contract for compensation as presumptively fraudulent, and in refusing to impose on him the burden of showing affirmatively that no unfair means were employed to procure it.
The judgment is affirmed.