110 P.2d 735 | Kan. | 1941
The opinion of the court was delivered by
This was an action to recover an alleged overpayment of an attorney’s fee. The defendant, prevailed, and the plaintiffs appeal.
The case has been here before, on appeal from an order overruling defendant’s demurrer to the petition, the judgment being affirmed. In view of the recital contained in the opinion at that time (Kirwin v. McIntosh, 151 Kan. 289, 98 P. 2d 160) a brief narration of the facts will suffice.
Reuben Denton and Zoa Denton, his wife, residents of Osage county, Kansas, died intestate in February, 1935, leaving eight children as their sole heirs. Their estate consisted of , real estate valued
Appellee then collected from the three appellants, the maxiumum fee of $600 fixed in the written contract, without tlieir knowledge of the fee of $928.14 allowed by the court and paid from the proceeds of the sale.
Contending that under the written contract appellee had agreed to do everything possible to get for them their share of the estate, both real and personal, for a maximum attorney’s fee of $600, appellants brought this action to recover an amount equal to the portion of the allowance in the partition action which came out of their distributive share of the proceeds. Appellants being entitled to' three-eighths of the net proceeds of the sale, they contend that three-eighths of appellee’s fee allowed in the partition action came out of their distributive shares, and that appellee should have credited them with such amount on their written contract with him. They accordingly sought recovery of $348.06, that amount being three-eighths of $928.14, as overpayment.
It seems necessary again to make clear, as we did in the former
The primary question presented to the trial court was to determine the meaning of the written contract. If the contract is unambiguous in character, and according to its terms the appellee agreed to take whatever steps necessary to secure to appellants their share of the estate, both real and personal, then judgment should have been for appellants, unless it be found that the written contract had been superseded by another contract between the parties.
Appellee’s contention is that a partition suit was not in the contemplation of the parties at the time the written contract was entered into, and therefore, the allowances made in that action have no connection with the contract. Appellants rely upon the terms of the written contract and allege that they had in mind any steps necessary to be taken to secure their share of the estate.
The contract reads as follows:
“This is an agreement between C. Oakley McIntosh, as attorney, and each of the undersigned parties.
“C. Oakley McIntosh is party of the first part and each of the undersigned a party of the second part.
“Now the parties of the second part are heirs at law of Zoa and Reuben Denton, deceased. They hereby employ Mr. McIntosh to give them legal advice and proceed at once to get for them their respective share of the said estate. Mr. McIntosh agrees to the best of his ability to do all that an attorney could and should do in their behalf, to the effect that they shall each get their partial shares as soon as possible and that they shall each get their full and final shares as soon as possible. Now each of the undersigned parties of the second part hereby agrees to pay a reasonable fee for such services to be determined by Mr. McIntosh according to the amount of work involved. Said fee shall not in any instance be less than $75 or more than $200 per party of the second part.”
It is well to note at the outset that this contract was drawn by appellee, an attorney, to cover an agreement between himself and
Appellee did not advise his clients that he had been allowed fees by the court and says that he did not think it incumbent upon him to do so. The record discloses an absence of that frankness with clients and'with the court which we should expect to find under such circumstances. The only testimony which can possibly be said to indicate an agreement between the parties, subsequent to the written contract, is appellee’s statement that he told one of the appellants that
Following formal recitals, the journal entry of judgment reads:
“And now on this 19th day of July, 1940, the court being fully advised in the premises finds that the contract sued upon and set forth in the petition was completely performed by the defendant and that the defendant should have judgment against the plaintiff for the costs of this action.”
The trial court’s judgment is based solely on the written contract and the finding is that the “contract sued upon and set forth in the petition was completely performed by the defendant.” Such a finding was not within the issue raised by the pleadings or by the evidence. Appellants neither alleged in the petition nor attempted to prove that appellee did not completely perform the services called for by the contract. They admitted that he performed those services. They only contended that he had collected more for the services t-han called for by the contract.
It is perfectly clear that both parties had in mind both the real and the personal property when they entered into the contract in which appellee agreed to do whatever an attorney “could and should do” to get them their full share of the estate. There being no ambiguity in the written contract, and there being no showing or finding that the written contract was superseded by a later contract, oral or written, appellants were entitled to judgment.
One further matter requires attention. Appellee alleged in his answer that Hattie Bixby, one of the plaintiffs, had signed an agreement on August 29, 1938 — copy of which was attached and made a part of the answer- — whereby she accepted $25 as a compromise settlement of the controversy concerning the attorney’s fee and released all further claim in the matter. Appellants filed no reply. They filed a motion for judgment on the pleadings and a demurrer to the answer, both of which were overruled. The matter was not discussed by appellants either in their brief or oral argument. The
The only matter remaining for consideration is the amount of the judgment to which appellants are entitled. Appellee asserts that in any event appellants would not be entitled to full recovery of the amount asked since he also represented in the partition action another plaintiff, LeRoy Denton, and also represented as guardian one of the defendants, an insane person, and that his associate counsel also represented him as such guardian. For that reason, it was urged by appellee when the case was here before, it was impossible for either court or plaintiffs to segregate or separate the allowances for attorney’s fees made in the partition action and determine what portion was chargeable to appellants. We accept and adopt appellee’s contention in that regard. That being true, it would certainly be inequitable to penalize appellants on that account and deny recovery. Especially so in view of appellee’s failure to disclose all the facts either to the court or to his clients. The defendant’s liability is established. It would confer no favor upon him to return the case to the trial court for further proceedings to determine the amount of the judgment. It would only prolong the litigation over a liability which defendant cannot escape. The facts are before us for computation. Under such circumstances, both in compliance with the mandate of the code that this court enter such final'judgment as it deems justice to require (G. S. 1935, 60-3317) and in harmony with the rule followed by this court in a long line of decisions (Harmon v. Coonrod, 148 Kan. 146, 154, 79 P. 2d 831; Cox v. Trousdale, 138 Kan. 633, 645, 27 P. 2d 298, and cases there cited), final judgment will here be rendered. We think the method of computation advanced by appellants is an equitable one under all the circumstances. They do not here attack any part of the allowance of $928.14 made in the partition action. They only ask refund of $348.06, the amount by which their net share of the estate was thereby depleted. Deducting one-third of this
The conclusion stated makes it unnecessary to consider other contentions of appellants.
The judgment is reversed and the case remanded with instructions to enter judgment for the defendant as to the claim of Hattie Bixby, and to enter judgment against the defendant and in favor of plaintiffs Mary Powell Kirwin and Ellen Denton for $232.04 and costs of the action.