166 S.W. 699 | Tex. App. | 1914
Appellees, James B. Charles J. Stubbs, a law partnership, sued appellant, alleging that on February 23, 1912, they were employed by Charles Hansen to represent him in his claim for damages against appellant growing out of a collision which occurred on or about February 18, 1912; and that said Hansen authorized appellees to sue for, settle, or compromise his claims, and in consideration of their services rendered and to be rendered to said Hansen, he transferred and assigned to them in writing a one-half interest in his claims and causes of action against appellant, and in any compromise, judgment, or recovery that he might be entitled to by reason of said collision and injuries and damages resulting therefrom. There are further allegations that they were representing said Hansen and carrying out this agreement with Hansen, and had notified appellant of their employment and of their interest in the claim; but that, although appellant had actual notice of appellees' contract, about May 20, 1912, appellant settled with Hansen for $3,500, and a judgment was entered in Hansen's favor for that amount, which was paid. The prayer was for $1,750 or one-half of the sum received by Hansen.
Appellant answered by general demurrer, general denial, and specially that at the time Hansen made the contract, if any, with appellees, he was mentally unfit to and incapable of making a valid contract, and same is void; and further that, after Hansen recovered his understanding, he repudiated said contract and declined to recognize appellees as his attorneys.
By trial amendment, appellees further alleged that, since the cause went to trial, they had learned that said Hansen had received $1,500 additional in satisfaction of injuries to himself, and for injuries to his minor daughter, growing out of the same accident in which his wife was killed, and alleging that said $1,500 additional payment was a settlement out of court and unknown to appellees until developed in the trial. Their additional prayer was for one-half of the $1,500 settlement made out of court, or a total of $2,500.
The trial, which was before the court, resulted in a judgment in favor of appellees for $2,375, from which the appeal is taken.
The contract entered into is as follows: "Galveston, Feby. 23d 1912. Messrs. James B. and Charles J. Stubbs, Lawyers, City — Dear Sirs: I hereby employ you to represent me in my claim for damages against the Gulf, Colorado Santa Fé Ry. Company, growing out of the collision on February 18th, 1912, and all injuries and damages resulting therefrom, and I hereby authorize you to sue for, settle or compromise such claim; and in consideration of your services rendered and to be rendered, I hereby transfer and assign to you a one-half (1/2) interest in my claims, *700 demands and causes of action and any compromise, settlement, judgment or recovery that I may be entitled to by reason of said collision, injuries and damages. Charles Hansen. Witness: W. J. Jinkins, M. D. Miss Julia Clooney."
It is admitted that this contract had been brought to the attention of the railway company, and that Hansen recovered a judgment against the company on May 20, 1912, for $3,500, which was settled May 23, 1912, for $2,350 to Hansen; and on May 22, 1912, he settled outside of court for his own injuries and those of his daughter for the sum of $1,500. The trial court finds that the company had actual notice of the contract before the settlements were made; but appellees were not notified of the settlements, and they knew nothing about such compromise until the judgment was entered for $3,500, and did not know of the $1,500 settlement until the trial of this cause. It is further found by the court that Hansen never disaffirmed the contract, but as late as the latter part of April or first of May he manifested an intention to abide by the terms thereof with full knowledge of its contents and of the efforts being put forth thereunder by said attorneys.
The trial court concluded that as a matter of law, while Hansen may not have known that his wife was dead at the time he executed the contract, he did know she and the child were with him, at the time of the collision, and must have known that what he was contracting for was the recovery of damage to which he might be entitled for all injuries and damages growing out of the collision from whatever source; and further that the contract conveyed to appellees a one-half interest in and to each and all causes of action growing out of the collision. The court also concludes that Hansen did not disaffirm the contract; that appellant had notice of the contract and, having such notice, had settled with Hansen for $2,375; and that appellees were entitled to judgment for one-half of that sum.
The contract not only assigned an interest in the claim for damages, but a one-half interest in any compromise, settlement, or recovery as well. As we construe the holdings of the courts, an attorney holding a contract such as the one in this case has three remedies, in the event the client settles the claim after notice to the party liable as to the existence of the contract, viz.: (1) He may proceed on the assigned cause for damages, in which event he would plead and prove the damages and liability therefor, and recover his part of such damages as might be established (Seiter v. Marschall [Sup.]
A case almost identical with the one under consideration came before the Supreme Court in G., H. S. A. Ry. Co. v. Ginther,
Another case very similar to this one came before the Austin Court of Appeals in G., C. S. F. Ry. Co. v. Eldredge,
From the authorities cited, it seems to be well settled that the assignee of an interest in a claim for damages may hold the party liable therefor responsible for his *701
proportionate share of a settlement made with the client after notice. The assignment is to one-half of "my claims, demands, and causes of action and any compromise, settlement, judgment, or recovery." Hansen did not expressly waive the right to himself settle the claim; but the railway was put upon notice that appellees had and owned a one-half interest in any compromise. So, when the railway paid Hansen all of the money, they could not thereby force appellees to sue Hansen to recover the money. The company knew of appellees' interest, and, when it paid Hansen all of it, the risk was the railway's. Appellees were not required to plead and prove the damages to Hansen, as contended, but could sue for their part of the settlement made. G., C. S. F. Ry. Co. v. Eldredge,
In view of the foregoing, assignments 1, 2, and 3 are overruled.
By the fourth and fifth assignments, appellant contends that, if Hansen ratified the contract of employment sued upon, such ratification was not binding upon the railway, and that no liability was, or could be, created against it by reason of such ratification because there is no evidence that the railway had any notice of such ratification before the settlement was made, and the finding of the court is against the great weight of the evidence. The railway had pleaded that, at the time Hansen made the contract, he was not in a mental condition to do so, and did not know all the facts. For instance, it was claimed that he did not then know his wife was dead.
That appellant had actual notice of the contract is not disputed. The court found that Hansen had not disaffirmed the contract but had manifested an intention to abide by its terms after knowing all the facts and before the settlement was made. In M. P. Railway Co. v. Brazzil,
Complaint is made that the trial court erred in permitting appellees to file a trial amendment on May 21, 1912, after the case had gone to trial, in which claim was made for $750, or one-half of a $1,500 settlement made by Hansen with the company out of court. Appellant claimed that it was a new and distinct cause of action, and asked to withdraw announcement and continue, which the court refused. Appellant admits in its brief, and did not then deny, that such settlement had been made. No defense whatever is shown against same other than is presented in regard to the $3,500 judgment. The receipts evidencing this settlement were produced by appellant's attorney during the trial of the cause. "It is within the discretion of the trial court to grant the request of the plaintiff to withdraw its announcement and amend its pleadings." G. B. Grocery Co. v. Carter, 30 S.W. 487. The statute (R.S. 1824), providing that amendments shall be filed before the parties announce ready for trial, and not thereafter, is directory, and it is not error for the court, in the exercise of a sound discretion, to allow the pleading to be amended, even after the trial has commenced." Railway Co. v. Goldberg,
Whether the court has abused that discretion is a proper subject of review. But, where a continuance is asked on the ground of surprise caused by filing an amendment, it must appear that the amendment makes it necessary to produce evidence not before required. And none other was required because the fact that settlement was made was admitted. Fisk v. Miller,
We have carefully considered all assignments and do not think any of them should be sustained.
The judgment is affirmed.