Allen v. Parish

• Decision Date: 11 October 1902
• Docket Number: 12,696
• Citation: 65 Kan. 496,70 P. 351
• Parties: STEPHEN H. ALLEN et al. v. GEORGE W. PARISH
• Court: Kansas Supreme Court

70 P. 351

65 Kan. 496

STEPHEN H. ALLEN et al. v. GEORGE W. PARISH

No. 12,696

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

Error from Allen district court; L. STILLWELL, judge.

Judgement reversed.

SYLLABUS

SYLLABUS BY THE COURT.

ATTORNEYS -- Fees for Services -- Improper Evidence. An attorney at law, representing a party having a case pending in this court, became ill and was unable to attend. With the consent of his client, he called on another lawyer to argue the case, but nothing was said about compensation for his services. There was a written contract between the attorney first mentioned and the client, by the terms of which it was agreed that the former should conduct the litigation for a stipulated fee. Of this contract the counsel appearing in this court had no knowledge. In an action against the client for compensation by the counsel representing him in this court, held, that the written contract was inadmissible in evidence on behalf of the defendant, and that the right to recover for services could not be affected by an understanding between the first attorney and the client that the attorney appearing here would do so without charge.

Campbell & Goshorn, and Allen & Allen, for plaintiffs in error.

Bennett & Morse, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action for the recovery of attorneys' fees. Defendant in error entered into a written contract with the Honorable J. F. Thompson, a practicing lawyer residing in Iola, in which it was stipulated that for a certain sum the latter would carry through to final judgment an action brought by Parish to cancel a gas and oil lease on his land held by the Palmer Oil and Gas Company.

After a decree had been entered against the gas company in the district court, proceedings in error were prosecuted by the latter to this court. The judgment of the court below was affirmed. (Palmer v. Parish, 61 Kan. 311, 59 P. 640.) The brief for this court was prepared by Judge Thompson. The case was assigned for argument on December 6, 1899. A day or two before that time Judge Thompson was taken ill. His client was informed that if he desired the case to be argued orally, other counsel must appear before the supreme court. It was finally agreed that the Honorable Stephen H. Allen, of Topeka, should be called on to argue the case, which he did. Nothing was said by Parish to Judge Thompson about payment to Judge Allen as compensation for his services. Defendant in error testified that he presumed Judge Thompson would satisfy Judge Allen in some way, and that the understanding was that he (Parish) should have the benefit of Judge Allen's services without cost to him. Of such understanding the plaintiffs in error were not advised. They understood that Judge Allen was to appear and argue the case in behalf of Parish, with no other agreement for payment than the law implies from the rendering of such services.

The court below instructed the jury that if, in the several conversations had between the defendant below and Judge Thompson, it was agreed that Judge Thompson should request Judge Allen to appear in the supreme court and argue the case, then Parish would be liable to the plaintiffs in the action. The court below further instructed that if Judge Thompson gave his client to understand that he (Thompson) would defray the slight additional expense for counsel fees or that the services would be rendered by Judge Allen as a matter of courtesy to a brother...