Yeager v. Scott

132 S.W. 83 | Tex. App. | 1910

RICE, J.

This suit grew out of a disagreement between the parties, who were attorneys at law, relative to a fee collected by one of them from their client, Miss Jennie Chamberlain. It seems that, prior to the institution of this suit, appellant had been employed by Miss Chamberlain to institute a partition suit against her mother, Mrs. Ruth Chamberlain, for her portion of their joint estate, estimated to be of the value of over $200,000. It appears that appellant, on account of the large amount involved, as well as the array of counsel representing Mrs. Chamberlain, deemed it advisable to procure assistant counsel, and thereafter sought and procured the consent of his client to associate with him Messrs. Scott & Sanford, attorneys of the Waco bar, to aid him in such litigation. It further appears that such employment involved not only said partition suit, tout likewise contemplated that they should represent her in certain proceedings in the probate court, wherein a receiver had been applied for and the property fOf Miss Chamberlain turned over to her mother as receiver; and likewise the setting aside of an order which Mrs. Chamberlain had procured, decreeing that her said daughter was of unsound mind.

We deem it unnecessary to set out in full the pleadings raising numerous other issues than those submitted by the court in its charge to the jury, because we think the charge, as given covered all the material issues presented by the pleadings and raised toy the evidence. The plaintiff contended that he only employed Messrs. Scott & Sanford to aid him in one branch of the case, to wit, the receivership proceedings, for which a fee was arranged commensurate with this service, and that the larger fee of $4,500, which was agreed upon, should be equally divided 'between them if they participated in the partition suit, which it was alleged they did not do; that he was entitled to $750 of a $1,000 fee which he alleged was paid by his client to Messrs. Scott & Sanford in trust for him, after a compromise had been effected, and -for which amount he sued, together with attorney’s fees. Appellees, on the contrary, denied this, and asserted that the fee of $4,500 was agreed upon for attention to the entire litigation, but that, since a compromise had been effected, it was subsequently agreed between plaintiff and themselves that they should receive $1,000, which was paid by their client for their exclusive benefit, leaving open for future adjustment plaintiff’s portion of said fee between himself and his client. In this connection we think the evidence clearly establishes the fact that, at the time of the employment of Messrs. Scott & Sanford toy Miss Chamberlain, it was agreed between her, plaintiff, and defendants, that they were to charge her a joint fee of $4,500, which was to be equally divided between them, but that said agreement did not contemplate that Scott & Sanford should participate in or be entitled to a division of any part of a fee of $1,000 which had been previously agreed upon between Miss Chamberlain and the plaintiff, $500 of which had, prior thereto, been paid to plaintiff; but it was specially understood and agreed that the plaintiff, in addition to his one-half of said $4,500, should be entitled to receive the balance of said' $1,000 then unpaid, evidenced by her note previously given to him therefor. After their employment Judge Scott, together with plaintiff, appeared in the county court and argued a motion to vacate the receivership, which was overruled, and from which an appeal was prosecuted to the district court. It also appears that plaintiff, prior to the association of Scott & Sanford with him, had filed partition proceedings in the district court. No further action, however, was taken in said litigation by any of said counsel in the courts, except to procure a dismissal of said pending litigation in pursuance of the compromise which had been agreed upon between the parties. There is evidence showing that Mr. Sanford, at the instance of plaintiff, represented Miss Ohamberlain in an effort to compromise this litigation, which extended over a period of some three months. It is true that plaintiff pleads that, by reason of the fact that he was leading counsel, he had the right to have all matters pertaining to this compromise submitted to him for his approval before final agreement, and that this was not done; but, on the contrary, it was shown that the agreement was submitted to him and that he approved it. In view of the compromise, it appears that both plaintiff and defendants concluded that it was right to reduce the amount of their fee; hut it is asserted by plaintiff that he did not participate in the negotiations between Mr. Sanford and his client with reference to the reduction thereof, and he specially denies that he did agree that Messrs. Scott & Sanford should receive a fee of $1,000 for their exclusive use and benefit, and that he was to look to his client for the payment of his portion of the fee; while, on the contrary, it appéars from the testimony that he was fully advised of all matters pertaining to the compromise, as well as the reduction of the fee, and that he finally agreed that Messrs. Scott & Sanford should receive for their exclusive use and benefit $1,000 from Miss Chamberlain, in full satisfaction of their portion of said fee, and that his portion was to be left open for future adjustment between himself and his client. These issues were, in a clear and terse charge, presented for the consideration of the jury .by the learned trial court, and were resolved by them in favor of defendants.

Plaintiff likewise alleged that the contract pleaded by Messrs. Scott & Sanford, wherein he agreed for them to receive $1,000 of the fee paid them by Miss Chamberlain for their exclusive use, and that he would look to his client for his part of said fee, was without consideration and void. In addition to his suit for the recovery of $750 of said fee so collected from Miss Chamberlain by appellees, based on their alleged obligation to hold Miss Chamberlain harmless against his future claim against her for his part of the fee, he sought to recover' 10 per cent attorney’s fees on the $500 note executed to him by Miss Chamberlain, on the ground that its payment had been delayed by the action and conduct of appellees; and also sought to recover $200 as attorney’s fees from them, on the basis that they had willf.ully withheld said $750 from him which he alleged was paid in trust by his client to them for him.

The first and second assignments complain of the action of the court in sustaining exceptions to plaintiff’s petition, seeking to recover attorney’s fees. We do not think there is any merit in this contention. There is nothing alleged that would, in our judgment, authorize the recovery of attorney’s fees. Besides, if this was error, it is harmless for the reason that the plaintiff failed .to recover anything.

The fifth assignment questions the action of the court in refusing to give plaintiff’s requested instruction to the effect that there was no consideration to support the alleged agreement allowing appellees to collect for their exclusive use the $1,000, leaving the matter of his fee open. The record shows, as testified to by Mr. Sanford, that appellant agreed to this, chiefly on the ground that he would thereby ibe entitled to collect a larger fee from his client than was allowed in the compromise. Besides this, appellees, by reason of the compromise, had abandoned their right to their portion of the $4,500, which of itself would be sufficient consideration to support the agreement. We do not believe that the evidence supports the contention that the settlement made by Mr. Sanford with reference to the fee in any way deprived the plaintiff of the right to assert any cause of action he may have had for his fee as against his client, and think the court properly refused the charge presenting this question.

Appellant insists that the verdict in unsupported by the evidence. After a careful review of the evidence," we are inclined to think it is ample in this respect.

The remaining assignments have been duly considered, but in our judgment are not well taken, and are therefore overruled.

Finding no error in the record, the judgment of the court below is affirmed.

Affirmed.