Lipscomb's Admr. v. Castleman

147 Ky. 741 | Ky. Ct. App. | 1912

Opinion of the Court by

Chief Justice Hobson—

Affirming.

C. E, Lipscomb employed D, E. Castleman as an attorney- to defend a suit which Henrietta Powers had brought against him; and signed and delivered to him the following written contract:

“I have this day employed D. E. Castleman to represent me in the case of Henrietta Powers against myself now pending in the Boone Circuit Court. I agree to pay him $250 for taking the case, win or lose, and have given him my note for that sum due in one year. .Should he gain the suit for me, I agree to pay him $200 additional.

“This August 1st, 1907.

“C. E. Lipscomb.”

Castleman brought this suit against Lipscomb to recover on the note for $250 referred to in the written agreement. Lipscomb by his answer pleaded that after the written contract was entered into, he concluded that he ought to employ other- attorneys and that thereupon it was agreed between him and Castleman that he should employ two other attorneys in the case and that Castleman would only charge him for his services a reasonable fee; and that he had paid him $200 which was the reasonable value of his services in the action. He also denied that Castleman had gained the suit for him. The case was heard before a jury who returned a verdict in favor of Castleman. The court entered judgment on the verdict and Lipscomb appeals.

The defendánt insists that the court erred in refusing to instruct the jury that the -plaintiff was not entitled to recover more than $250, subject to a credit of $200 which had been paid him. This instruction was asked upon the ground that the evidence did not show that Castleman had gained the suit. The record of that case had been made a part of the bill of exceptions. It shows •these facts: Henrietta Powers had made a deed to Lipscomb for a tract of land. The deed recited that it was made in consideration of $3,000 paid and to be paid as follows: $2,100 cash and the remainder to be paid on certain notes held by a third person. She alleged that no consideration was paid her for the land; that the deed was obtained by fraud and asked that it be cancelled. Lipscomb by his answer denied all this, and on final hearing the court upheld the deed, but required Lipscomb to pay the balance of the purchase money which he admitted in his answer that he owed. It also reqnired Mm to pay tbe cost of tbe action as he bad not paid tbe balance of tbe purchase money, and a sale of tbe land was ordered to make this.

Castleman won tbe suit that be was employed to defend. He sustained tbe deed. There was no issue in tbe case as to tbe balance of the purchase money, and tbe fact that Lipscomb was adjudged to pay tbe cost was due to bis not tendering tbe purchase money. When Castleman was employed be was told that tbe purchase money bad all been paid, and bis contract imder the facts manifestly bad reference to sustaining tbe deed for tbe land. We think, therefore, tbe court properly refused to give tbe instruction as asked by Lipscomb which was in effect an instruction telling tbe jury that Castleman bad not won tbe suit.

Tbe defendant also complains that tbe court refused to instruct tbe jury that Castleman was not entitled to tbe full amount of tbe contract fee because two other attorneys were employed .to assist him in tbe action. But tbe court properly refused to give this instruction 5 for Castleman under bis contract was entitled to bis fee unless there was some agreement that be was not to charge tbe full fee when other attorneys were employed to assist him in tbe case. (Townsend v. Rhea, 18 R., 901.) It may be that tbe attorneys who were employed to assist Castleman did a large part of tbe work which be would otherwise have done, and it may be that the case would not have been won but for their skill in helping him defend it; still these matters do not deprive Castleman of bis contract rights; for be bad a right to stand upon bis contract, and Lipscomb- could not deprive him of tbe benefits of bis contract without bis consent, by anything that be could do.

Lastly, it is insisted that tbe court misinstructed tbe jury. The court by tbe first instruction told tbe jury in substance that they should find for tbe plaintiff tbe amount of tbe note unless there bad been a subsequent agreement between tbe parties by which Castleman was to be paid only a reasonable compensation for bis services ; and that be bad accepted tbe $200, as such reasonable compensation, in which event they should-find for tbe defendant. This instruction standing alone would be misleading, but tbe second instruction plainly told tbe jury that if there was an agreement that Castleman was only to charge-a reasonable fee for - bis services they should only allow him such reasonable compensation, and deduct therefrom the $200, which had been paid him, and find for him only the remainder, if any. By the third instruction they were told that if he accepted the $200 in full satisfaction of his claim, they should find nothing for him. Reading the instructions as a whole, we can not see that the jury could have misunderstood them. The finding of the jury is plainly a finding that the agreement relied on by the defendant was not in fact made and it is evident from their verdict, that they were-not in fact misled.

Judgment affirmed. ■