125 Mo. App. 369 | Mo. Ct. App. | 1907
This is a proceeding to enforce an attorneys’ lien under the provisions of the statute. [Session Acts, 1901, p. 46.] The cause was here on a former appeal and in the opinion filed therein we discussed and determined the rights of the parties and the course of procedure to be followed, and the cause was returned to the circuit court to be heard and determined in accordance with the views expressed. [Curtis v. Railroad, 118 Mo. App. 341.] In the trial anew, the facts adduced did not differ materially from those presented on the former appeal and the learned trial judge followed our opinion and entered judgment in favor of the attorneys and adjudged that the same be enforced as a lien on the judgment previously obtained by their client against the defendant and which was compromised and settled by the parties thereto without the knowledge or consent of the attorneys. From this judgment, defendant again has appealed and is earnestly endeavoring to convince us that our conclusions as before expressed are unsound. A thorough re-examination of the questions involved has resulted only in a firmer establishment of the conviction that both on reason and authority the decision was correct and should not be disturbed.
But one of the several questions before determined appears to require further elucidation. We held that, as the contract between plaintiff and her attorneys provided for the payment to the latter of an attorneys’ fee
We begin its consideration by assuming that in their settlement, plaintiff and defendant acted in good faith, without any purpose to defraud the attorneys of the former out of any portion of their just due, under the contract of employment, and on this hypothesis, our inquiry leads us to this question: What were the proceeds of the settlement? The contract gave to the attorneys fifty per cent of the entire proceeds, and if they are to be measured alone by the payment of two hundred dollars made by defendant to plaintiff, then defendant would be right in the contention that the attorneys are entitled to a fee of but one hundred dollars. If, on the other hand, the settlement made produced other fruits, the attorneys should receive their moiety of all. As long as the parties acted in good faith, the defendant, at the risk of having to pay the attorneys’ fee twice, because of the lien which attached to the judgment, could agree with plaintiff to pay her the entire proceeds of the settlement and depend on her to pay her lawyers their fee. And, had it been the understanding that the payment of two hundred dollars made to plaintiff was to include the amount due them, we would have no hesitation in saying that her failure to pay the fee would give to the attorneys no other lien, under the statute, than one for the security of a fee of one hundred dollars. In such case, the payment to plaintiff would include
Defendant endeavors to illuminate its argument with this illustration: “Suppose that in the case at bar it had been the defendant, in place of plaintiff who was insolvent, and that plaintiff had been perfectly solvent. Respondents, in that case, could have followed the ‘proceeds’ into the hands of the plaintiff and claimed their
To answer the question raised in this example is not difficult. The clandestine agreement of plaintiff and defendant to settle their controversy did not absolve plaintiff from her obligation to her attorneys under the contract of employment, and if she chose to accept the promise of an insolvent for a part of the proceeds of that settlement, she assumed the risk of the failure of her promisor to pay. She could no more require her lawyers to share in that risk than she could compel them to accept the whole of it in consideration of their demand against her. In the case supposed, as in the one actually before us, the proceeds of the settlement would consist of the sum of the amount of the cash payment and the amount covered by the promise and the attorneys would be entitled to; recover from their client one-half of the total sum.
Further, it is argued that as the parties to the settlement understood that the attorneys were entitled to not more than one hundred dollars under their contract, the promise of defendant was, in effect, a promise to pay one hundred dollars in addition to the sum of two hundred dollars paid to plaintiff, and to permit the attorneys to recover two hundred dollars would impose on defendant a burden of one hundred dollars in excess of the amount the settlement agreement required it to pay. Plaintiff, while acting within the limits of good faith, had the right to settle her entire cause of action for any
Finding, as we do, that the entire proceeds of the settlement amounted to the sum of four hundred dollars, it follows that the attorneys are entitled to recover in this proceeding the sum of two hundred dollars. Accordingly, the judgment is affirmed.