137 Mo. App. 89 | Mo. Ct. App. | 1909
— The plaintiff in this action recovered a judgment against deféndant for personal injuries. She employed C. W. Prince as her lawyer in that case and agreed in writing to allow him as his fee one-half of what she recovered. She empowered him to. take every step necessary to her protection and benefit. He employed the firm of Boyle, Guthrie & Smith to aid him in prosecuting the action and agreed to pay them one-half the sum he was to get. A judgment of $4,500 was obtained and that was affirmed by this court, and on the 20th of January, 1908, a mandate from this court was filed with the clerk of the trial court. Before the mandate was filed, to-wit: on the 4th of December, 1907, Prince notified defendant of his employment and of his contingent fee and of Boyle, Guthrie & Smith’s employment by him and an agreement for division of the fee. The notice closed in these words: “You will kindly
Prince also notified the clerk of the trial court of his contract with plaintiff and of Boyle, Guthrie & Smith’s interest. The notice stated that the defendant was “about to pay into your (the clerk’s) hands the sum of about $4,800 and I respectfully request that my share of said amount, to-wit: twenty-five per cent of the whole, or about $1200, be retained by you until personal request for same is made by me.”
On the 30th of January, 1908, defendant’s attorney wrote to Prince notifying 'him that on next day at ten o’clock he would pay the amount of the judgment to the clerk. It was not paid at ten, but was paid about two* o’clock, of which time Prince was notified. It was then paid by check to the clerk, who endorsed it over to Boyle, Guthrie & Smith as attorneys for the plaintiff. Prince arrived just after this and before Guthrie, who personally attended to the matter, had left the room. Prince demanded of Guthrie that he turn the check over to him and that Guthrie refused. Prince then telephoned defendant’s attorney and asked him to stop payment of the check. The attorney said he had paid the money to the clerk and disclaimed all further connection.
• Prince afterwards instituted the present proceeding by filing a motion to set aside the satisfaction of judgment pro tanto, and for execution for his part of the fee. The trial court overruled the motion.
There are two good reasons for sustaining the action of the trial court in overruling the motion, of Prince for execution for his part of the fee. One is that the case shows that with the knowledge and consent of Prince payment of the judgment was to be made to the clerk of the trial court, and it was so made. He accepted that mode of payment and notified the clerk that the judgment would be paid to him. The entire difficulty has arisen since the payment thus made.
The whole trouble arises between him and his agents and there is neither justice nor law in attempting to make defendant responsible for it. .The judgment is affirmed.
