270 S.W. 943 | Tex. App. | 1925
This suit was brought by plaintiffs in error against defendant in error. The indorsement of the district court designates it as an appeal, so does the brief of appellee. It is in this court a writ of error, and the only issue is as to whether the contract of employment of plaintiffs in error was upon the basis of 10 per cent. upon the recovery of any judgment or 10 per cent. upon the amount recovered.
The plaintiffs in error contend that they were employed to prosecute to final judgment a suit against I. G. Palacios and the American Surety Company, the surety upon the bond of I. G. Palacios given to defendant in error to recover a claim against Palacios for theft or appropriation of moneys belonging to defendant in error. It is alleged that defendant in error agreed to pay plaintiffs in error, for their services, 10 per cent. of whatever final judgment they might recover against both parties.
The judgment recovered against Palacios was for $25,000, and against the surety company $5,000. The judgment against the surety company was settled for $3,500, and plaintiffs in error were paid the sum of $350, being 10 per cent. of the amount collected; and this suit is to recover 10 per cent., or $2,000, alleged to be due them on the rest of the judgment against I. G. Palacios.
The issues were submitted to a jury, and upon their finding, in favor of defendant in error against plaintiffs in error, the trial court entered judgment in accordance therewith.
There was no dispute as to the employment, nor to the fact that the attorneys performed valuable and faithful services. The only question being as to whether the 10 per cent. agreed upon was as to the amount of recovery or as to the amount collected.
The employment of plaintiffs in error on the part of defendant in error was made for the bank through its president, L. Villegas.
On the trial plaintiffs in error swore that the employment was to be 10 per cent. of the entire recovery, and Villegas swore it was to be 10 per cent. of the amount collected. Defendant in error has had the benefit of the services, and has recovered judgment, which may or may not in the future be collected, but no part thereof has been paid to plaintiffs in error. Upon this issue being so sharply joined, the court, over the objections of plaintiffs in error, permitted the board of directors each to testify, in effect, that Mr. Pope, one of defendant in error's attorneys, was authorized to file the suit, but his compensation was to be 10 per cent. on the amount collected.
Neither one of the attorneys were present when such conversation took place among the board of directors, nor did they have any knowledge thereof. The testimony therefore was hearsay.
It is undisputed that the employment was authorized to be made and that the bank or trust company got the benefit thereof. It was serious error to permit such oral testimony by the board of directors of the bank in regard to their discussion, in the absence of plaintiffs in error, relative to the employment of said attorneys. There was no original record or resolution passed at the time to show the authority to employ plaintiffs in error, and, if so, it was never communicated to them.
It did not change the status of the erroneous testimony that it was alleged that plaintiffs in error were employed through the bank's board of directors, for they were. This would not relieve the defendant in error from the error of introducing the parol discussion of the bank directors among themselves, never communicated to plaintiffs in error until after the performance of the service.
Of course, banks are controlled by their board of directors. It is also true that certain duties and employments for the benefit of banks are made by the president and recognized. But the employment here is undisputed, the amount of compensation only is in dispute, and it makes no difference that the pleading was as contended by defendant in error; yet that would not allow defendant in error to introduce illegal testimony. The case of Provident Bank v. Webb,
For the error shown in permitting the hearsay evidence to be introduced of the board of directors concerning their discussion of the matter of employment in the absence of plaintiffs in error, which was not communicated to them until after the disposition of the case, the judgment is reversed and the cause remanded for another trial.
*1032Reversed and remanded.
