157 Mo. 140 | Mo. | 1900
The plaintiff alleges that about March 5, 1896, the defendant employed him as an attorney and counsellor at law in connection with her interest in the estate of her deceased brother, George Sheidley; that her brother died testate on the second of March, leaving the defendant and her sister, Sarah Matilda Sheidley, and her two brothers, Henry and William, as his only heirs, and leaving an estate worth eight hundred thousand dollars; that by his will he devised to Henry sixty thousand dollars, to William one hundred thousand dollars in stock and lands worth in all seventy or eighty thousand dollars, to the defendant twenty thousand dollars, and to defendant’s three sons ten thousand dollars each, and the remainder of his estate he devised to his sister, Sarah Matilda Sheidley; that the defendant was dissatisfied with the will and wanted one-fourth of the estate or two hundred thousand dollars, and hence she employed plaintiff as her attorney and counsellor to examine and investigate the will, the property and its value, the soundness •of the testator’s mind and'the undue influence of Sarah Matilda Sheidley for the purpose of contesting the will and recovering her interest as heir; and to compromise the matter with her sister. The petition then charges: “That at the time he was so employed by defendant he informed her that
The plaintiff introduced evidence tending to prove the allegations of his petition and tried his case upon the theory of a direct employment of him as an attorney at law by the defendant without any direct or express contract as to the amount to be paid him, further than that he told her that the usual charge was five per cent if the case was settled out of
■ “Eriend Warder: At your proposition to pay you whatever I thought right for services I herewith inclose you a check for $300, the same as I will have to pay son Earl Seitz. Appreciating all your kindness, I beg to remain, Tour friend, Caroline Seitz.”
The plaintiff answered the note the next day> acknowledging the receipt of $300, and saying he had credited it upon her account and asking her to send a check for tbe balance on Monday or Tuesday.
Tbe defendant’s son Earl married tbe daughter of Mrs. John B. Warder, and tbe plaintiff is Mrs. Earl Seitz’s third cousin. The defendant lives in Ohio, and came to Kansas City with her sons to attend the funeral of her brother, and after tbe funeral went to board at Mrs. Warder’s house, where tbe plaintiff also boarded, and it was there that the plaintiff alleges that the arrangement as to employment was made. The plaintiff and Earl Seitz, the day after the funeral, went together to the probate court and elsewhere looking into the will, the property and the controversy, and on nearly every
On the other hand the defendant’s evidence tended to show that after she went to Mrs. Warder’s house and was talking over the matter with her sons and relatives, the plaintiff thrust himself upon her and offered to assist her; that she did not know he was an attorney at law or that he was proposing to act for her as such, but that she told him that if she had to have a contest she would employ the best “will lawyer” she could find and asked plaintiff who were the best lawyers in Kansas Oity, and he recommended Eyke, Yates & Eyke; that in going with her sons to examine the will and to see Mr. Stocking she thought and understood that he was simply acting as her friend, and in a business way and she expected to pay him for his services in that capacity, but that she never employed him as her attorney at all and he never rendered her any legal services, but.did only what her son was also doing for her, and they generally acted together;
With the exception of the expert testimony as to the
I.
The defendant contends that the petition is based upon an express contract and that the trial court erroneously treated the case as one upon a quantum meruit, and that the plaintiff should have been limited to his express contract pleaded.
If the major premise was true the conclusion would necessarily follow, and the case would fall within the principles laid down in Cole v. Armour, 154 Mo. 333, and McCormick v. Interstate Ry. Co., 154 Mo. 191, and the cases in those cases cited and reviewed.
But the contention is untenable for the petition can not fairly be said to be based upon an express contract. The nearest the petition comes to stating an express contract is in the clause wherein it is averred that he told the defendant at the time that he was employed by her that “the customary fee for such services was five per cent if settled out of court and ten per cent if settled after suit, upon whatever amount she received; that defendant made no objections to said fee, but instructed plaintiff to take charge of her interests and proceed in the premises to secure a settlement by compromise, or failing in that, to bring suit to break and set aside said will.” And it will be observed that it is not therein or thereby stated that she agreed to pay him that amount, but only that she made no objection to such a fee and this does not make the petition any the less an action of indebitatus assumpsit. [Brown v. Kimmel, 67 Mo. 430.] It is not necessary now to decide whether such conduct would amount to an express contract nor whether she would be estopped from denying that she had made such a contract, for the plaintiff had a right to sue on a quantum meruit even if there had been
II.
The second error assigned 'by the defendant is the refusal of the trial court to give defendant’s second and third instructions, which are as follows:
“2. If the jury believes from the evidence that defendant did not employ plaintiff as a lawyer to perform the alleged services in question, then plaintiff can not recover and your verdict must be for defendant.
“3. The jury are instructed that if you find from the evidence that plaintiff performed any services for defendant in and about the estate of her brother, Gfeorge Sheidley, deceased, but that such services were not legal services, but were business transactions only, then you will not be warranted in considering the expert testimony adduced on the trial in this case tending to show the value of legal services as such.”
These instructions state the pith of the defendant’s whole contention, and express the antithesis of the plaintiff’s case. He claims she employed him as an attorney and that he rendered legal services. She claims that she did not know
This necessarily results in reversing the judgment of the circuit court and remanding the case for further proceedings in conformity herewith. It is so ordered.