134 Mo. App. 477 | Mo. Ct. App. | 1908
Plaintiffs are partners, located in the city of St. Louis and engaged in the practice of law. Defendant is also a lawyer and resides in the city of Jackson, Missouri. In 1905, a judgment was rendered against defendant, in the Bollinger Circuit Court, for about eight thousand 'dollars. He appealed from this judgment to the Supreme Court and employed plaintiffs to represent him in said cause. Judge William C. Marshall, one of the plaintiffs, briefed and orally argued the case in the Supreme Court for defendant. The action is to recover the reasonable value of plaintiffs’ services, plus $18.25 costs expended by plaintiffs for defendant at his instance and request. The petition alleges the reasonable value of plaintiffs’ services to be $2,000, alleges a credit of $500, and prays judgment
The evidence shows that on April 26, 1906, defendant wrote Judge .Marshall soliciting his services. The letter concluded with this sentence: “If you take case please intimate amount of your fee and payments. I expect to prepare to pay promptly.” Thereafter the following letters were written and received: (Marshall (for Bond, Marshall & Bond), to Sandford, April 27, 1906).
“As well as I can now understand the case and the labor to be expended, it seems to me that a retainer of $500 would be a proper charge. Then when the brief is prepared and the case is argued, if this is not a sufficient compensation we can agree what other amount, if any, ought to be charged. The retainer, of course, to be all that is paid until then. If this is satisfactory you can send us a check for that amount,” etc.
Sandford to Marshall, May 21, 1906:
“The charge of $500 will be satisfactory to me, but I would prefer to have the amount settled. After looking over the record you will see there are really but two questions for consideration. First,’ the construction of the will, one of law, and, second, my allowance for services. I can pay by the first of August without inconvenience, and you need not take up the case until payment is made. I only want it understood you will accept the fee. My health is quite poor and I desire to arrange for this matter, and am glad you are associated with the firm so that there will always be some one to look after the case.”
“Yours of the twenty-first inst. received: Unless there is something more in the case than we now know of there will be no further charge than the $500, but in any event there shall be no misunderstanding between us, and you shall be satisfied.”
Other correspondence followed between the parties but it is of no importance in the determination of this appeal.
«Plaintiffs offered evidence tending to prove the reasonable value of their services. Defendant offered countervailing evidence. Plaintiffs also offered evidence showing that instead of there being but two questions for consideration in the case appealed to the Supreme Court, as represented by defendant, there were in fact six, and that the six were briefed and orally argued by Judge Marshall. Plaintiffs also offered evidence showing that on the appeal, the judgment of the circuit court was cut down $4,876.18 by the judgment of the Supreme Court.
1. At the close of plaintiffs’ evidence, and again at the close of all the evidence, defendant offered an instruction in the nature of a demurrer to the evidence. The refusal of the court to grant these instructions is assigned as error. Defendant’s contention is that plaintiffs, by their letter of May 22d, agreed that no fee in excess of the retainer of $500 paid would be demanded, unless defendant was satisfied that additional compensation should be paid, and as he was not satisfied to pay more, more could not be recovered. Defendant, on the day before the trial, without notice to plaintiffs, filed an amended answer in which the defense was expressly pleaded but this amended answer was stricken out on motion of plaintiffs, because filed out of time. The issues were made by the petition and the answer, containing a general denial and a plea of payment, so defendant’s contention is outside the scope of the plead
2. The instruction given on behalf of plaintiffs are in accord with the views herein expressed and are approved.
3. Defendant asked the following instructions, which the court refused to give:
“5. If you find and believe from the evidence that it becáme and was an issue in said case of Albert v. Sandford as to whether or not the defendant, Sandford, was entitled to charge the trust estate in his hands as trustee with an attorney’s fee or fees for attorneys representing him in said litigation, and as to what would be and was a reasonable^ fee, and that the plaintiffs were defendant’s attorneys in making said contention in the Supreme Court of Missouri, and in presenting the same to said court, and that the plaintiffs urged the said court that the defendant was entitled to reasonable attorney’s- fees, and that the Su*483 preme Court thereafter handed down its opinion and judgment in said cause, wherein and whereby it decided that the defendant’s fees, and that the defendant had then at said time that said opinion and judgment were rendered, paid out for attorney’s fees in said case sums aggregating $1,200, and that the plaintiffs were at said time advised of said fact, and that the plaintiffs did not take or file any exception to the finding of said Supreme Court and did not move for a rehearing of said cause, and did not thereafter state or suggest to said Supreme Court that said sum of five hundred dollars was not a reasonable- attorney’s fee, then the court instructs you that under the pleadings and the evidence in this case your verdict will be for the defendant.
“4. If you find and believe from the evidence that the plaintiffs wrote and sent the defendant the letter of May 22, 1906, in evidence, with the intention on their part or on the part of the one sending the same, of inducing or persuading the defendant to believe that they would not charge him more than five hundred dollars for their legal services in said case of Albert v. Sandford, and that their purpose, or the purpose of any one of them, was to induce the defendant to retain them as counsel in said case, and that defendant was in fact induced by said letter to believe and that he did believe, that plaintiffs would not charge him' more than five hundred dollars for their services in said case, and that it was because of this belief that he decided to and did retain the plaintiffs as his counsel, and sent them a copy of the printed record in said case of Albert v. Sand-ford for the purpose of having them proceed with the work of getting up their brief in- said case, and that defendant would not have employed the plaintiffs but for such belief, and that defendant has paid plaintiffs said five hundred dollars, then the court instructs you that under the pleadings and the evidence in this case your verdict will be for the defendant.
*484 “6. The court instructs the jury that the words ‘you shall be satisfied,’ as used in the letter from plaintiffs to defendant, dated May 22, 1906, mean not' that plaintiffs’ charge should be or ought to be satisfactory to the defendant, but that, in fact, the same would be satisfactory to him.”
Instructions numbered 4 and 5 are outside any issues made by the pleadings and for that reason were properly refused. [Christian v. Insurance Co., 143 Mo. l. c. 469.] Number six, as we have seen, put an erroneous construction on the letter of May twenty-second.
4. Plaintiff failed to give defendant statutory notice to produce some of the letters written by them and received by him, and 'defendant, either not having these letters at the trial, or having them and refusing to produce them on plaintiff’s verbal request, plaintiff, over the objection of defendant, were allowed to read carbon copies of such letters, to which defendant objected and excepted. In Wright v. Railroad, 118 Mo. App. l. c. 397, Judge Ellison, writing the opinion of the Kansas City Court of Appeals, said: “Something was said in the testimony as to carbon copies of the scale tickets. This, we understood to mean several copies made at one writing of the weight upon the paper ticket. Such carbon copy is practically' an original and there can be no objection to receiving it as evidence. [1 Elliott on Evidence, sec. 208.]” This is not only a sane ruling but an intelligent one and therefore worthy of being followed.
5. No point is made in defendant’s brief on the action of the court in striking out his amended answer.
No reversible error appearing, the judgment is affirmed.