Wheless v. Serrano, 121 Mo. App. 17

Wheless v. Serrano

121 Mo. App. 17 | Mo. Ct. App. | 1906

GOODE, J.

Respondent, who1 is an attorney at law, filed two actions on the same day before a justice of tbe peace against appellant to recover for legal services. In his statement of bis cause of action in what we will designate as case No. 1, be set out four items aggregating $499.25. One of tbe items was for a fee of $350 for services as attorney in tbe case of Serrano v. Miller-Teasdale Commission Company, an action instituted in tbe circuit court of tbe city of St. Louis to recover $2,000 for tbe tortious conversion of property. Another item was for a fee of $75 for services in tbe case of Serrano v. Greenguard, an action for $4,500, instituted in tbe St. Louis Circuit Court for personal injuries to one A. P. Serrano, appellant’s brother. Tbe third item was for cash advanced to pay for printing briefs on tbe appeal of tbe case of Serrano v. Miller-Teasdale Commission Company. Tbe fourth item was for $50 for an opinion on tbe title of some mining property. Tbe statement filed in this case, which we will designate as case No. 2, consisted of a single item and was for a fee of $500 for legal services rendered by respondent as attorney for appellant, Rafael P. Serrano, in an action instituted against him by Everett P. Teasdale, in tbe circuit court of tbe city of St. Louis, to recover $20,000 damages for malicious prosecution. In case No. 1, respondent got judgment against appellant for $249.25 in tbe justice’s court. On appeal that judgment was affirmed in tbe circuit court and subsequently paid. In case No. 2, tbe judgment in tbe justice’s court went in favor of appellant, but tbe cause having been carried to tbe circuit court and there tried anew, judgment was awarded to respondent for $250, from which judgment tbe present appeal was prosecuted.

Tbe defense to tbe action was twofold. Tbe defense on tbe merits was that respondent being an attorney’ engaged in tbe practice of law in tbe city of St. Louis, and appellant tbe consul of tbe Republic of Mexico in *20said city, they had agreed, prior to the performance of any legal services by respondent, that if the consul would turn over to respondent such legal business as he controlled by virtue of his office, respondent would attend to all his individual business for á nominal fee. The other defense was, in effect, a plea of prior adjudication, and that the present cause of action having accrued when case No. 1 was filed in the justice’s court, and as it covered the same character of services embraced in the statement filed in case No. 1, respondent was bound to include the item covered by the present case in the other one; was precluded from splitting his demand and, hence, the payment of the judgment in case No. 1 was a bar to his recovery in this case. There was a conflict of evidence in regard to the defense on the merits and it is stated in appellant’s brief that the court, sitting as a jury, having found the issues of fact for respondent under proper declarations of law relating to those issues, they are not to be considered on the appeal and part of the evidence bearing on them is omitted from the record. Some reference to such evidence as we have before us is necessary to a- correct disposition of the defense of former adjudication. Appellant testified that he made the arrangement with respondent- to attend to appellant’s individual business for a nominal fee at the date of the institution of the case of Serrano v. Greenguard, or on February 11, 1901; that there never was any other contract and all respondent’s legal services, were rendered pursuant to the arrangement then made. Respondent contradicted this testimony; swore that Serrano had sent him consulate business for two or three years, but with no understanding that Serrano’s personal affairs of a legal sort were to be looked after by respondent for a nominal fee, because of the consulate business to be thrown to respondent; that Serrano employed him in the case of Serrano v. Miller-Teasdale Commission Company *21after it had been pending a year and without referring to any other business and that respondent brought the suit of Serrano v. Greenguard at appellant’s request. It'was further shown Serrano requested Wheless to enter appearance in the suit of Teasdale v. Serrano, which was successfully defended. No fee was agreed on in either of these cases; and in the two actions instituted by respondent to recover for his services he obtained judgment quantum meruit. The learned circuit judge who tried this case declared the law relating to the defense of the alleged splitting of respondent’s cause of action to be, that if the court found from the evidence Serrano made separate and distinct contracts of employment with respondent in each of the matters referred to in the evidence, and the contract made for respondent’s services in the case of Teasdale v. Serrano (i. e. the services sued for in this action) was made at a time long after the employment and services in the other matters mentioned and while the same were pending and undisposed of, then any suit or judgment for legal services rendered in the case of Serrano v. Teasdale was not a bar to a recovery in the present case; but the cause of action sued on herein is a separate and independent contract of employment. The declaration of law given for appellant on the question, stated, in effect, that if the court found that on or about the month of February, 1901, it was agreed by the parties that appellant should turn over to respondent any legal business under appellant’s control and in consideration thereof respondent would attend to appellant’s personal legal business for a nominal fee, and thereafter respondent attended to appellant’s legal business and the latter turned over to the former the legal business which came to the consulate in accordance with said agreement, and that prior to the institution of this suit, respondent had represented appellant in the case of Serrano v. Miller-Teasdale Com*22mission Company under said agreement, and that on the same day this suit was instituted another suit was brought for the recovery of a fee in the suit of Serrano against said Commission Company and thereafter judgment was recovered in said other suit and paid, and that the legal services rendered and sued for in the present case under the aforesaid agreement, had been and were fully performed at the time of the institution of said other suit by respondent, then the fees -in the two cases of Serrano v. Teasdale and Teasdale v.. Serrano constituted an entire demand which could not be split and separate actions brought in respect of it.

The court below having found a verdict for respondent, it is apparent and, indeed, is conceded, that the finding was in respondent’s favor on the issue of whether or not he agreed to attend to appellant’s personal legal business for a nominal fee in consideration of receiving other business through the consulate. In other words, the court found no such agreement had been made. It is apparent, too, from the legal propositions declared, that the court found the fee involved in the present action was earned under a separate contract of employment independent of the contract of employment in the case of Serrano v. Miller-Teasdale Comm ission Company, the fee for which was embraced in case-No. 1, and satisfied by the payment of the judgment rendered therein. As the testimony was conflicting, the court was warranted in making these findings and there is no contention to the contrary. But appellant insists that because the item sued for in this case arose in a transaction of the same character as the transaction out of which the other fee grew, that is, out of the relation of attorney and client, and because, further, the fee in controversy had accrued and was due when the statement was filed "before the justice in case No. 1, respondent was bound to include this item in the other action and, therefore, the judgment in the other action is a bar. *23This proposition would only be tenable by disregarding the findings of fact made by the learned circuit judge. If the two fees accrued under separate and distinct contracts of employment, respondent might have united them in one suit, but was not bound to do so. They represented separate causes of action which he had the right to maintain separately. [Flaherty, Admr., v. Taylor, 35 Mo. 447; Union, etc., Trans. Co. v. Traube, 59 Mo. 355, 362; Hoffman v. Hoffman’s Exr., 126 Mo. 486, 497, 29 S. W. 603; Stark v. Star,. 94 U. S. 477; Secor v. Stergis, 16 N. Y. 588; Grocer Co. v. Taggart, 60 Mo. App. 389, 393.] Decisions that several items of an account for merchandise sold and delivered or labor done, must be embraced in one action, áre not exceptions to the general rule, but proceed on the theory that the different items accrued under a single agreement.

Complaint is made of another declaration of law given at respondent’s instance, wherein the court declared, in effect that if respondent was employed by appellant to conduct the defense of the case of Teasdale v. Serrano, an action for damages for an alleged malicious prosecution, and under such employment respondent ■ represented appellant in said suit and conducted the defense, and on the trial of same rendered services resulting in appellant’s favor, then respondent is entitled to recover the reasonable value of his services. The objection preferred against this declaration of law is that it left out of view the defense of former adjudication and simply held respondent was entitled to a verdict in the present case for the reasonable value of his fee if he had rendered the stated .services, without .regard to whether or not the judgment in the other case was a bar. The declaration in question might have been misleading if the issues were to be decided by a jury; but could have done no harm as the court was to find the facts. The other declarations of law show the court took into consideration the defense of res judicata and stated what *24facts were necessary to maintain it. It is conceded that the court found those facts did not exist. This being true, if respondent performed the services as he testified, he was entitled to a judgment as the court declared; hence, said declaration of law was, at the most, harmless error. Declarations of law are less closely scrutinized when the facts are to be determined by the court 'than are instructions to juries, because the only reason for giving declarations is to show the legal theories on which the court disposed of the case. [Williamson v. Drew, 9 Mo. App. 598; Stone v. Rennock, 31 Mo. App. 544.] As- it is confessed that the court, on competent evidence, found against appellant's contention that respondent agreed to act as his attorney for a nominal fee, and also against the existence of the facts relied on to support the defense of a prior adjudication, and as the law on the latter defense was correctly declared, it is clear that declaring* respondent was entitled to judgment for the reasonable value of his services, if rendered as he testified, does not indicate that the court lost sight of either the defense on the merits or the claim that the present suit was barred by the judgment in the other one.

The judgment is affirmed.

All concur.