These cross-appeals are from an order and judgment allowing plaintiffs’ attorneys $80,000 as fees for services and $4,327.77 for expenses incurred in the prosecution of an equity action involving the construction of a voting trust agreement. One ground of defendants’ appeal is that the allowance of attorneys’ fees is excessive by at least $75,000, while the plaintiffs in their appeal assert that the allowance is inadequate in the sum of $60,000. The amounts involved vest jurisdiction in this court. Art. V, § 3, Constitution of Missouri 1945; Section 477.040 RSMo 1959, V.A.M.S.
The history and outcome of the principal litigation is set out in Jesser v. Mayfair Hotel, Inc., Mo.,
In August 1955, the voting trustees were Charles Heiss, William S. Bedal, William C. Connett, J. L. Davis, and Clarence M. Turley. At that time voting trust certificates had been issued for a total of 13,988 shares of the capital stock held in the voting trust. Charles Heiss and others cooperative with him owned voting trust certificates representing 9,668 shares of the capital stock. Mr. Heiss was one of the voting trustees and had been active in the management of the Mayfair and Lennox hotels for a number of years. The plaintiffs were the owners of voting trust certificates representing 244 shares of the remaining 4,320 shares of stock held in trust. These 4,320 shares or certificates therefore will sometimes be referred to as the minority shares or the minority interest.
On August 5, 1955, C. Gordon Heiss, a son of Charles Heiss, acting on behalf of Heiss Securities, Inc., submitted to the four trustees (excluding Charles Heiss) a written proposal to purchase from the trustees at $90 per share 4,320 shares of Mayfair stock described in the offer as being held by 235 persons in different amounts. Thereupon the four trustees sent out a notice to minority holders of the voting trust certificates describing the offer received and stating that they had agreed to sell their 4,320 shares and would consummate the sale on or before September 9, 1955, unless the holders of voting trust certificates representing not less than 1,440 of these minority shares notified the trustees of their objections prior to August 31, 1955. The trustees recommended acceptance of the offer. Owners of certificates representing 683 shares of stock sent in objections.
On August 25, 1955, the plaintiffs, as beneficial owners of a part of the shares designated, filed a class action in equity for an injunction to prevent the trustees from consummating the proposed sale and for other relief. The defendants, in addition to the five trustees, were Mayfair Hotel, Inc., a corporation, Lennox Hotel Company, a corporation, Heiss Securities, Inc., a corporation, and C. Gordon Heiss, a son of Charles Heiss, and the vice-president of Heiss Securities. While the action was pending, Charles Heiss died and C. Gordon Heiss, executor of the will of Charles Heiss, deceased, was substituted. The trial on the merits in October 1956 was before the court without a jury; the judgment and decree was in favor of the defendants on all of the issues and the injunction sought was denied. The plaintiffs appealed to this court where the judgment was reversed and the cause was remanded with directions to enter a decree enjoining the sale by the voting trustees of the 4,320 shares and dismissing the counterclaim of the defendant trustees at their cost without allowance of attorneys’ fees to the defendant voting trustees; and, the voting trust agreement having expired by its terms, the voting trustees were directed to deliver the stock of Mayfair to the registered holders of the voting certificates in accordance with the provisions of the. voting trust agreement. Jesser v. Mayfair, Mo.,
In due time after remand, the plaintiffs filed an amended petition for attorneys’ fees asking an allowance of $140,000 for fees and $4,325.25 for expenses. The court heard evidence and allowed $80,000 for fees and $4,327.77 for expenses. The plaintiffs appealed and so did all of the defendants except the four surviving trustees. The parties have stipulated that in determining the issues presented on these appeals the court may refer to any matter, record, transcript or briefs filed in the supreme court in connection with the previous appeal. To the extent necessary, additional evidence will be referred to in the course of the opinion.
The plaintiffs and their attorneys, Harold C. Ackert and John W. Giesecke, the petitioners in the application for fees and *656 expenses, have filed joint briefs and will be referred to as the plaintiffs. The defendants, Mayfair Hotel, Inc., Lennox Hotel Company, Heiss Securities, Inc., and C. Gordon Heiss, individually, and as executor of the estate of Charles Heiss, deceased, have filed joint briefs as appellants and will sometimes be referred to collectively as Mayfair. The four surviving trustees are respondents and have filed a joint brief as such.
Appellant Mayfair’s first contention is that the trial court had no jurisdiction or power to entertain plaintiffs’ petition for an allowance of attorneys’ fees and expenses because the supreme court reversed the judgment and remanded the cause with directions which were dispositive of all issues raised by the pleadings thereby depriving the circuit court of further jurisdiction to entertain the plaintiffs’ application. Prior to the previous appeal, the trial court by consent of the parties and as a part of its judgment retained jurisdiction to receive and consider an application by any party for allowance of attorneys’ fees and expenses incurred in connection with the litigation.
Considerable stress is placed upon the fact that the opinion dismissed the trustees’ counterclaim at their costs and denied the claim of the trustees for an allowance of attorneys’ fees and expenses. The trustees’ counterclaim and cross-bill, in addition to asking for a construction of the trust instrument, prayed “ ‘(c) that the Court allow these defendants their reasonable attorneys’ fees, costs and expenses in connection with this counterclaim and cross bill, to be charged against the trust estate and to be reimbursed to them by Mayfair Hotel, Inc.; * * *.’ ” In granting the injunction and dismissing the counterclaim, the supreme court was confronted with the proper disposition of the trustees’ claim for attorneys’ fees and expenses which was a part of the counterclaim. The denial of attorneys’ fees to the trustees was ancillary to the court’s determination that the trustees were attempting to act without lawful authority and that they were not entitled to relief under the counterclaim. The per curiam opinion modifying the judgment and overruling the motion for a rehearing states: “Our denial of attorneys’ fees to the voting trustees upon the facts of this case followed on our findings that the voting trustees were acting beyond their powers.”
There was no issue before the supreme court as to the fees and expenses of plaintiffs’ attorneys and such issue was not adjudicated. The directions in the opinion and mandate did not deprive the circuit court of its jurisdiction and power to hear and determine the application for allowances of fees and expenses to plaintiffs’ attorneys. Sprague v. Ticonic Bank,
One of the contentions urged most strenuously by the Mayfair group is that the plaintiffs and their attorneys are not entitled to an allowance of fees and expenses because plaintiffs’ primary purpose and the object of their suit was to terminate the trust by forcing the sale of all of the Mayfair stock or, in the alternative, to destroy Mayfair by forcing a liquidation of its assets and the distribution of its proceeds and further because the overall result of the suit was a net loss and not of substantial benefit to anyone including the trust beneficiaries and Mayfair. This contention requires a further reference to the cause and character of the injunction litigation and to the previous decision of this court.
The transaction which precipitated the filing of the injunction suit was the attempt by the trustees in August 1955 to segregate and earmark 4,320 of the trust shares and to sell them as shares of the minority interest to the holders of the majority of the voting trust certificates at $90 per share pursuant to the offer of Heiss Securities. There is no evidence that the plaintiffs had any intention of filing any action or attacking the administration of the trust prior to this *657 undertaking. Although the Heiss interests had been negotiating with the trustees since “sometime in the spring” of 1955, the first notice the minority holders had of the purported sale of their interests was upon receipt of the trustees’ letter dated August 5, 1955. The letter stated that the trustees had accepted the Heiss offer and unless the holders of voting trust certificates representing “not less than 1440 shares of stock of the Company” notified the trustees of their objections prior to August 31, 1955, the sale would be consummated. As shown by the letter, the purported sale bore the imprimatur of the trustees. Clearly, the litigation was provoked by the trustees’ threatened sale of assets in violation of the voting trust agreement. The minority holders had twenty-five days or less to investigate and decide what to do. If anything was to be done other than to acquiesce, the need for action was urgent. It is in this background that we must determine whether the plaintiffs on behalf of themselves and other minority holders acted excessively and with an improper motive in filing their suit and conducting the litigation.
The primary and dominant purpose of the plaintiffs must be determined from the record before us. In this regard, the pleadings in the case, the transcript of the record on the previous appeal, the briefs filed, and the opinion of this court are most revealing and persuasive. The first ground of action alleged in plaintiffs’ complaint is that the trustees were without power or authority under the trust agreement or otherwise to sever and sell the 4,320 shares or any part less than all of the shares held in trust. The allegation of this proposition and related matters occupy approximately the first twenty-five pages of the petition as it appears in the transcript on the first appeal. The assertion of grounds for further relief and the prayer make up the last four pages of the petition. Two supplements to the complaint alleged that two additional offers had been received, one for all of the stock, and the other for 4,320 shares, both at prices in excess of the Heiss offer, and asserted that the conduct of the trustees was not designed to and would not secure for the minority beneficiaries the highest possible price for their shares. These supplements again asserted that the plaintiffs and other beneficiaries had an interest in each and every share in the trust which could not be extinguished without a sale of all the stock and that the trustees had no power to sell only a part. The plaintiffs’ first prayer for relief was that the court enjoin the proposed sale of 4,320 shares or set aside the sale if it has been consummated. This as well as other relief sought involved a determination of the authority of the trustees under the trust agreement. The briefs on appeal dealt with the relief sought in approximately the same order and proportion as did the plaintiffs’ pleadings. The space and prominence given these issues in the pleadings are not conclusive, but they give some indication of what was uppermost in the plaintiffs’ minds.
If the dominant purpose of the plaintiffs’ litigation was not squarely before the supreme court on the first appeal, the court’s opinion foreshadowed the proper determination of that issue. The opinion at
The Mayfair group cite and discuss a number of cases where in general the object of the suit was to have a trust instrument or a part thereof declared invalid or to have it construed in such a way that all or a substantial part of the property would be taken from the trust and vested in the plaintiffs to the exclusion of others, but that is not the situation here. The plaintiffs did not seek to have the voting trust agreement or any part thereof declared invalid. They did not seek to obtain from the trust estate any property other than in accordance with its terms or to obtain for themselves a greater proportionate share than the interest of any other beneficiary. Even the secondary and alternative relief sought by the plaintiffs bore some reasonable relation to the performance of the trust in a manner contemplated by its terms. The trust instrument prescribed conditions under which the trustees might sell all of the stock held in trust and there were provisions relating to liquidation. While the term of the trust was fifteen years, there were conditions under which the trust could properly be terminated sooner. The cases cited are not applicable to the facts of this case.
On the evidence before us and in accordance with the previous opinion we hold that the primary and dominant purpose of the plaintiffs and their litigation was to enjoin the unauthorized and unlawful sale of trust assets or to set the sale aside if it had been consummated, and that the relief requested necessitated a construction of the voting trust agreement. The other relief sought but not obtained did not change the primary and dominant character of the action. From this it follows that the construction of the voting trust agreement was not incidental but was of primary importance.
The Mayfair group further asserts that the litigation was primarily a contest between the majority and minority interests. All voting trust certificate holders were of the same class and the conflict of interests did not arise out of the parties status as beneficiaries of the trust. It resulted because the Heiss group claimed the right to obtain legal title to 4,320 shares, as shares beneficially owned by the minority group, by means of an involuntary sale which the plaintiffs contended the trustees had no power or authority to make. So far as this conflict was concerned, it would have been the same if the prospective purchaser had been a stranger to the trust agreement. In Leggett v. Missouri State Life Ins. Co., Mo.,
Where ambiguity exists in a trust instrument resulting in a legitimate controversy as to the proper distribution of the trust fund or administration of the trust, the party instituting an action to construe
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the instrument is entitled to his fees and expenses even though he may benefit personally by the outcome of the litigation. Hereford v. Unknown Heirs, Mo.App.,
Mayfair presents in several different ways and places its contention that no allowance of fees and expenses is justified against any of the defendants because the overall result of the litigation was a substantial net loss and of no benefit to anyone concerned. This contention is based largely on the assumption that the sale of the 4,320 shares which was blocked by the injunction would have been a good thing financially for all concerned. The arguments under these points indicate that the Heiss group have never quite accepted the holding of this court that the attempted sale was unauthorized and wrongful.
The Heiss interests cannot be permitted to offset or treat as a loss the benefit or gain they anticipated by acquiring the 4,320 shares at $90 per share and by the elimination of the minority shareholders. A claim of loss cannot be based upon a failure to make a profit out of the wrongful and unauthorized act which would not have been permitted to stand in any event. In re Weed’s Estate,
Those minority holders who wanted to sell their voting trust certificates to Heiss Securities were not prevented from doing so. After the suit was filed, Heiss Securities offered to buy voting trust certificates on a voluntary basis at $90 per share and later at $96. This continuing offer was communicated by the trustees to the minority holders although it was not something covered by the trust agreement.
As to the Ossey and Kamm offer, Mayfair asserts that if the plaintiffs’ contention that the shares of stock in trust were “fungible” was correct then the injunction against the sale of the 4,320 shares caused a loss of $60 per share or a total of $259,200 to all of the beneficiaries including the minority holders. One weakness of this argument is that a sale to Ossey and Kamm of 4,320 from the fungible shares would have primarily benefited the purchaser in that the proportionate dilution of the remaining interests would have reduced the Heiss holdings to less than 50 per cent and there would have been no majority control. The 4,320 shares to be sold represented a little less than 31 per cent of the total. If the shares were fungible, the 9,668 majority shares and the 4,320 minority shares would have been proportionately reduced. Thus approximately 2,986 shares would be taken from the majority group and the same proportion, or 1,334 shares, from the minority interests. This would leave the Heiss group with approximately 6,682 shares, Ossey and Kamm would have had 4,320 shares, and the present minority group about 2,986 shares. Ossey and Kamm *660 would have obtained at a minority price 4,320 shares which at the termination of the trust would have taken on their proportion of the total value of all the shares since no one group of shareholders would then have a majority interest. The trust would have been deprived of the shares sold and the loss would ultimately have fallen upon the beneficiaries. The contention that all of the beneficiaries suffered a substantial net loss because the sale was enjoined is without merit.
The result of plaintiffs’ action was to preserve and keep the trust estate intact. We must assume that the voting trust had a beneficial and salutary purpose at its inception or it would not have been ordered as a part of the plan of reorganizing the hotel company. The voting trust agreement recited that the purpose of the voting trust was “to unite the voting power” and to protect the security of the second mortgage income bonds. If it was initially beneficial, it must have continued to be so in 1955 although only a little more than two years of its existence remained. In view of Heiss’s position that the 4,320 shares could be sold by the trustees, it is unlikely that the Heiss group would have had any standing in equity if they undertook to prevent a sale to a stranger who would offer a higher price for the shares. Whether the 4,320 shares were sold to the Heiss interests or to a stranger, it would probably have resulted in the termination of the trust. These 4,320 shares would have been out from under the control of the trustees and free to be voted by the purchaser. The owner would then have been able to elect minority representation on the board of directors. The voting power continued to be united because the injunction suit was filed and the integrity of the trust was preserved.
The injunction issued in the plaintiffs’ action saved the trustees as well as the Heiss interests from the doing of a wrongful act and consummating an unlawful sale of trust assets which might easily have cost more to undo than to prevent. In their counterclaim and cross-bill, the trustees belatedly recognized this and sought a determination of their authority. They set out some of the legal entanglements likely to result if the sale was consummated and subsequently set aside and referred to the liabilities that might accrue in the event they refused to consummate the transaction if they had the authortiy to do so. It was beneficial to have the question determined before the sale was consummated even if no value is placed upon the advantage to all concerned in avoiding a breach of trust.
There was evidence tending to show that the liquidation value of the Mayfair stock was from $250 to $275 per share and that C. Gordon Heiss would not sell the Heiss stock for $270 per share. The Mayfair group says that liquidation value is of no consequence in a continuing business and that the fair market value was at most $90 per share because they were minority shares. Of course, if the shares had been acquired by the Heiss interests, they would have become part of the majority shares and would have taken on added value as such. Although liquidation or asset value is not exclusively determinative, it is an important factor for consideration in ascertaining the fair value of shares of capital stock in a close corporation. Phelps v. Watson-Stillman Co.,
Where one goes into a court of equity and takes the risk of litigation on himself and successfully creates, protects, or preserves a fund or brings about the creation, increase, or protection of a fund in which others are entitled to share, those others will be required to contribute their proportionate part of counsel fees and expenses, and the equitable way to apportion these fees and expenses is to allow them against the fund. Leggett v. Missouri State Life Ins. Co., Mo.,
A trust beneficiary who prevents a wrongful disposition of trust assets renders a benefit to the trust estate as much as the one who recovers back property wrongfully disposed of. Leggett v. Missouri State Life Ins. Co., Mo.,
In accordance with the opinion of the supreme court and the judgment of the circuit court pursuant thereto, the trustees delivered the shares of Mayfair stock to the registered holders of the voting trust certificates. The circuit court specifically retained jurisdiction of the cause for the purpose of determining plaintiffs’ claim for attorneys’ fees and expenses and for the “determination of the Defendants-Respondents Voting Trustees compliance with the provisions of this decree.” The defendant Mayfair now contends that by reason of the distribution of the shares of stock no trust fund remained and the circuit court was thereafter without the power or authority to allow attorneys’ fees and expenses against the fund or any former beneficiary. Mayfair cites the statement from Leggett v. Missouri State Life Ins. Co., Mo.,
Practically all questions now urged by the defendants (including this one) were presented in Leggett v. Missouri State Life and determined adversely to the defendants’ present contention. In Leggett the assets of the insolvent company were sold to General American Life Insurance Company under a purchase agreement and the litigation arose on exceptions to the final accounting of General American. The result was the reallocation of the charges and credits in the accounts which General American was required to pay. In Koplar v. Rosset, the counsel fees and expenses were ultimately allowed against Marma-duke Apartments, Inc., the corporation whose stock was held in the voting trust, and this court stated with respect to the retention of jurisdiction by the trial court to make such allowances:
“
* * * we think the corporation as well as other trust certificate holders benefited by this action, therefore the trial court’s action was proper.”
The distribution of the shares of stock did not extinguish the jurisdiction of a court of equity to allow attorneys’ fees and expenses incurred in the construction of the trust instrument and the preservation of trust property. This is especially true in view of the provisions of the voting trust agreement for the payment of the charges and expenses of the trust.
The trust agreement, provides in section 25 that the voting trustees are authorized to incur and pay reasonable expenses and charges including any charges incurred in connection with the voting trust agreement. The expenses and charges incurred by the trustees “if not paid by the Company” could be deducted from the dividends or other income collected by the trustees on the stock deposited or from the distributive proceeds in the event of dissolution or liquidation of the company. It is further provided that the holders of voting trust certificates shall be liable for their pro-rata shares of any and all payments due the voting trustees. This section further provides that Mayfair Hotel, Inc., agrees “to reimburse them [the trustees] for any and all expenses or charges incurred by them hereunder and to indemnify them against any and all proper and necessary liabilities incurred by them directly or indirectly as Voting Trustees hereunder.”
The voting trust was designed and imposed by the federal court for the benefit of the reorganized Mayfair Company and through it for the benefit of the income bondholders, the voting trust certificate holders, and ultimately the shareholders of the company. The provisions of the voting trust agreement disclose an intent that the charges and expenses of operating the trust be paid by the Mayfair Company as a necessary expense for the benefit it received for the operation of its business under the favorable conditions of the voting trust. Plaintiffs’ petition specifically prays for judgment against Mayfair Company. It was within the trial court’s equitable jurisdiction and sound discretion to impose the obligation to pay these expenses and charges of the trust upon the Mayfair Corporation. This is in keeping with the holding in Koplar v. Rosset,
The judgment originally provided that the allowance for attorneys’ fees and expenses should be “taxed as costs against all defendants in the proceeding herein.” On motion of the trustees, the judgment was amended so as to tax the allowance as costs against all defendants “other than defendants William S. Bedal, William C. Connett, J. L. Davis and Clarence M. Turley.” The plaintiffs claim the trial court erred in amending the judgment so as to eliminate the trustees. The plaintiffs now concede that they are proceeding against the trustees only in their representative capacity as trustees of the voting trust. The trustees assert that the plaintiffs’ amended petition for attorneys’ fees and expenses does not state a claim or seek a judgment against them and that they are not liable on any theory. The application leaves no doubt that the plaintiffs were seeking to impose a liability on the trust es *663 tate for their attorneys’ fees and expenses. Jurisdiction of the circuit court was reserved for this purpose. The prayer of the application seeks the allowance “as an expense of the trust”. The four surviving trustees were trustees of an express trust and as such were proper parties defendants representing all of the beneficiaries of the trust estate. S.Ct. Rule 52.01, V.A.M.R.
The petition was sufficient to support a judgment for attorneys’ fees and expenses against the trustees in their representative capacity as an expense of the voting trust. The claim of liability of the trustees in their representative capacity is consistent with plaintiffs’ pleadings and trial theory and is not repugnant to the prayer for relief. Kemp v. Woods,
The Mayfair group further asserts that the trial court had no jurisdiction to tax plaintiffs’ attorneys’ fees and expenses
as costs
or to enter judgment for such fees and expenses against any defendant. In Sprague v. Ticonic Bank,
By reason of their interests in the subject matter, all of the defendants were proper parties to the main action although the defendant trustees by reason of holding the legal title were the only ones who could transfer and convey the shares if authority to do so existed. Since they did not prevail, the conventional costs, or the costs between party and party, in the main proceeding were properly taxed against all of the defendants. Expenses of litigation, or costs as between attorney and client, however, are in a different category. We have held that where a person at his own risk protects or preserves a fund, the others entitled to share in that fund will be required to contribute proportionately to the expenses of litigation and that the equitable way to apportion the expenses is to pay them out of the fund or from other sources in which all are proportionately interested. The surviving trustees represented the trust estate and all of its beneficiaries. Mayfair Hotel, Inc., benefited by the action and under the voting trust agreement was the source of funds to pay the charges and expenses of the trust estate. In these circumstances we find no authority or justification for imposing the costs of the litigation upon the defendants other than the trust estate and the Mayfair Company. Accordingly, it was error to render judgment for plaintiffs’ litigation expenses against the defendants Lennox Hotel Company, Heiss Securities, Inc., C. Gordon Heiss, individually and as executor of the will of Charles *664 Heiss, deceased. This is in keeping with the theory of the trustees themselves; in the prayer of their pleadings in the main action, they ask that their reasonable attorneys’ fees, costs and expenses in connection with their -counterclaim and cross-bill “be charged against the trust estate and * * * be reimbursed to them by Mayfair Hotel, Inc.”
The final question presented by the two appeals involves the amount of the award of attorneys’ fees. The plaintiffs and their attorneys claim that “it is demonstrably inadequate”. The defendants, on the other hand, claim that the allowance is excessive.
The services were rendered principally by Mr. Ackert and Mr. Giesecke in St. Louis and four attorneys in Chicago where some of the plaintiffs resided. It is unnecessary to describe the legal services in detail. The nature of the services performed are reflected in the records, briefs, and the decision in the first appeal, Jesser v. Mayfair Hotel, Inc., Mo.,
Mayfair contends that a large amount of time was spent unnecessarily in trying to obtain without success secondary or alternative relief. The possibility of unnecessary work as well as overlapping of efforts will be considered as we are sure it was by the trial court. The Mayfair group also asserts that a reasonable time allowance to investigate, prepare and try the case, and handle the appeal on the question of the trustees’ authority to sell less than all the stock, would be about one hundred hours, and that a reasonable charge for those services would not exceed $5,000. We cannot agree that plaintiffs’ attorneys, or any attorneys, possess the acumen and foresight under the circumstances in this case to select the precise issue upon which they will ultimately prevail and to reject all others, or to adduce the exact amount of evidence needed and no more. The necessity and reasonableness of the time and effort expended must be determined in the light of the circumstances then existing and not in retrospect.
Supreme Court Rule 4.12, V.A.M.R., provides helpful guides in ascertaining the value of legal services. We have considered and applied these standards. The question involved was undoubtedly a novel and difficult one. The pleadings, transcript, and briefs on appeal in the main case bespeak the industrious application of a high degree of legal learning and skill. The opposing lawyers were equally capable and resourceful. We have considered the subject matter and the amount reasonably involved in the controversy and the benefits resulting from the services rendered. Arriving at a proper charge is often difficult for the lawyer; it is hardly less so for the court.
In cases tried upon the facts without a jury, the appellate court reviews both the law and evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, and the judgment shall not be set aside unless it is clearly erroneous. S.Ct. Rule 73.01(d), V.A.M.R.; Section 510.310, subd. 4, RSMo
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1959, V.A.M.S.; Leggett v. Missouri State Life Ins. Co., Mo.,
The Mayfair group further contends that the expense allowance of $4,-327.77 should be disapproved in its entirety because there was no evidence of the amount of expense properly allocable to that portion of the plaintiffs’ effort in which they succeeded. The plaintiffs’ evidence tended to prove that the expenses in the sum of $4,327.77 were reasonable and necessary in connection with the litigation. The defendants did not by evidence or cross-examination establish otherwise. We can do no better. The request that we disapprove the allowance in its entirety is denied.
The judgment of the trial court is affirmed in part and reversed in part in accordance with the foregoing opinion. The finding and allowance in favor of the plaintiffs and their attorneys of $80,000 for legal services and the sum of $4,327.77 for expenses as costs of the injunction litigation and as an expense of the trust estaie are affirmed.
Where a judgment creditor appeals on the grounds of inadequacy from a recovery in his favor, and the judgment is affirmed, he is not entitled to interest pending the appeal. Komosa v. Monsanto Chemical Co., Mo.,
It is further ordered and decreed: that said fees and expenses aggregating $84,-327.77 be allowed and assessed against the defendants William S. Bedal, William C. Connett, J. L. Davis, and Clarence M. Turley, in their representative capacities as trustees under the voting trust agreement (and not personally or individually) as a charge and expense of carrying out the voting trust agreement; that the plaintiffs and their attorneys, Harold C. Ackert and John W. Giesecke, have and recover of the defendant Mayfair Hotel, Inc, the said sum of $84,327.77 as costs of the injunction litigation and as a charge and expense of the voting trust agreement; that the said sum of $84,327.77 so allowed, assessed, and adjudged shall be payable directly and only to Harold C. Ackert and John W. Giesecke and not to the plaintiffs; that if the amount due on the above judgment is not paid by the defendant Mayfair Hotel, Inc, the judgment creditors shall not be deprived of any other remedy they may have under the voting trust agreement or otherwise for the collection of said judgment; that payment to Harold C. Ackert and John W. Giesecke of the sum of $84,327.77 allowed, assessed, and adjudged as costs of the injunction litigation and as a charge and expense of the voting trust agreement shall constitute complete satisfaction and payment in full of all sums allowed and decreed herein; that the claim of the plaintiffs and their attorneys for allowance of said attorneys’ fees and expenses against the defendants Lennox Hotel Company, Heiss Securities, Inc, C. Gordon Heiss, individually and as executor of the will of Charles Heiss, deceased, is denied; and that the conventional costs in this case in the trial court and on appeal are ordered taxed against the defendant Mayfair Hotel, Inc.
The cause is remanded with directions to enter judgment accordingly.