Hurr v. Metropolitan Street Railway Co.
124 S.W. 1057
Mo. Ct. App.
1910
Check Treatment
JOHNSON, J-

This is a proceeding to enforce an attorney’s lien for unpaid fees. The petitioners, Eieger and Carmean, were employed by plaintiff, Laura M. Hurr, to prosecute an action in tort against the defendant railway company. They took the case on a contingent fee of fifty per cent, brought suit and prosecuted it in the circuit court. A trial resulted in a verdict and judgment for plaintiff in the sum of $900, and defendant appealed to this court. While the cause was pending on appeal, the parties, without the knowledge or consent of the petitioners, compromised and settled the judgment for $400, and pursuant to agreement, the appeal was dismissed. Afterward, the attorneys filed their petition to establish and foreclose their lien.

The settlement contract was reduced to writing and signed by the parties. It is as follows: “Know all men by these presents, that we, Laura M. Hurr and Ellis Hurr, her husband, of Kansas City, Missouri, for the sole consideration of the sum of Pour Hundred and 0-100 ■ dollars to us paid by the Metropolitan Street Railway Company, the receipt of which is hereby acknowledged, do hereby release and forever discharge said Metropolitan Street Railway Company, its successors and assigns, from all actions, causes of actions, suits, controversies, claims and demands whatsoever for or on account of injuries received to the person or damages caused to the property of the signer hereof, or either of them, and especially on or about the 23d day of July, 1904, on the Fifteenth street line near Fifteenth and Woodland ave., in Kansas City, Mo.; and being especially in full satisfaction and settlement of the judgment rendered in the case of Laura M. Hurr v. Metropolitan Street Ry. Co., No. 20579, on January 17, 1906, in the circuit court of Jackson county, Missouri, the general description herein, however, to control the specific one, and all other claims on the part of either of the parties hereto of whatsoever nature or description.

“It is expressly understood and agreed that said *221sum of Four Hundred and 0-100 dollars is tbe sole consideration of this release, and the consideration stated herein is contractual, and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein.”

The court found the issues for the petitioners and fixed the amount of their lien at $400.

It is not claimed that this compromise was tainted with any kind of fraud. By the express terms of- the written contract, the consideration of $400 paid to plaintiff is made to rélease and satisfy the entire cause of action and is agreed to be contractual. Certainly plaintiffs will not be heard to attack or in any manner to impugn this contract. [Tate v. Railway, 131 Mo. App. 107.] And in the absence of fraud, the attorneys of plaintiff have no higher or better rights than their client and are bound by her contract of settlement to the same extent as she is bound.

In the case of Curtis v. Railway, 118 Mo. App. 341, much relied on by the petitioners, the compromise agreement contained no stipulation making the consideration paid the plaintiff contractual, and the proof showed the defendant agreed, in addition to the sum paid the plaintiff to pay her attorney’s fees. We held that the whole proceeds of the settlement consisted not alone of the sum paid the plaintiff, but of that sum plus an equal amount due her attorneys under the terms of her contract with them. In the present case, not only does the written contract speak in the most positive terms of the sum paid plaintiff in compromise as the sole consideration for the full release of the entire cause of action, but there is nothing in the oral evidence to contradict this contract — if it were permissible to contradict it. Plaintiff, introduced as a witness by the petitioners, would not say defendant agreed to pay her lawyers. She went ño further than to say that defendant’s agents told her that her lawyers had a lien for their fee. We hold, however, that oral testimony is *222•wholly incompetent to contradict or yary the terms of the written contract which, as we have stated, treats the consideration as a contractual subject and not a mere recital.

Recent decisions in this State construing the Attorney’s Lien Law, with one accord, hold that the client, as long as he acts in good faith, without intent to defraud his lawyers, has the right to compromise and settle his cause of action with or without the consent of his lawyers, and the amount of their fees will be liquidated by such settlement. [Laws 1901, p. 46; O’Connor v. Transit Co., 198 Mo. l. c. 641; Curtis v. Railway, 118 Mo. App. l. c. 352; Taylor v. Transit Co., 198 Mo. 715; Boyle v. Railroad, 134 Mo. App. 71; Boyd v. Mercantile Co., 135 Mo. App. 115; Abbott et al. v. Railway, 138 Mo. App. 530; Wait v. Railroad, 204 Mo. 503; Yonge v. Transit Co., 109 Mo. App. 235.]

The contract of the petitioners with plaintiff, their client, entitled them to fifty per cent of the proceeds of her settlement with defendant. The entire proceeds consisted of the sum of $400 paid plaintiff, and the lawyers were entitled to receive $200 from their client as their share of the proceeds. In paying all the settlement money oyer to plaintiff, defendant did not and could not escape liability on account of the lien. The learned trial judge erred in fixing the amount of the lien at $400, and the judgment is reversed and the cause remanded with directions to enter judgment for the petitioners for the foreclosure of their lien in the sum of $200.

All concur.