Axton v. Vance

• Court: Kentucky Court of Appeals
• Writing for the Court: DRURY, C.
• Citation: Axton v. Vance, 207 Ky. 580, 269 S.W. 534 (Ky. Ct. App. 1925)
• Decision Date: 20 February 1925
• Parties: AXTON v. VANCE (TWO CASES).

269 S.W. 534

207 Ky. 580

AXTON v. VANCE (TWO CASES).

Court of Appeals of Kentucky.

February 20, 1925

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Actions by Burton Vance against Woodford F. Axton. Judgments for plaintiff, and defendant appeals. Affirmed.

Woodward & Warfield and John Marshall, Jr., all of Louisville, for appellant.

Duffin Ray, Vance & Duffin and Trabue, Doolan, Helm & Helm, all of Louisville, for appellee.

DRURY C.

Appellant in the first case is complaining of a judgment for $2,497 with interest from July 12, 1919, and in the second case of a judgment for $1,997, with interest from June 25, 1923. Axton was represented in the case of Axton v. Axton, reported in 182 Ky. 286, 206 S.W. 480, and 184 Ky. 615, 213 S.W. 548, by two attorneys, the appellee, Vance, of Louisville, and E. B. Anderson of Owensboro, and, when their services were concluded, they asked Axton for a fee of $15,000, of which they told him $8,000 should be paid to Vance and $7,000 to Anderson. These men were not partners, having been merely associated together in the representation of Axton.

The appellee, Vance, sued appellant, Axton, for a balance of $6,997, with interest from July 12, 1919, claimed to be due him after allowing credit for $1,003 upon a fee of $8,000 charged appellant by Vance, for services rendered him as his attorney in the case of Axton v. Axton, supra.

In his answer, Axton says:

"Defendant denies that he has refused to pay any part of the fee claimed, but says that he has offered to pay and is now willing to pay the sum of $2,497 in addition to the sum of $1,003 which he has heretofore paid the plaintiff, and denies that there is now due to the plaintiff from defendant the sum of $6,997, or any sum in excess of $2,497."

At this juncture Vance moved for a judgment for the $2,497 which was not controverted, and the court entered judgment against Axton for $2,497 with interest from July 12, 1919, to which action of the court Axton reserved exceptions, and he has appealed therefrom. His objection was that the court allowed interest on this $2,497 from July 12, 1919, when its payment was requested, and the propriety of allowing this interest is the question before us on this first appeal. Vance's services to Axton were completed on July 12, 1919. Whatever Axton should have paid for those services, was then due, and Axton should then have paid it. As he did not, it is right that he pay interest on it.

In Spalding v. Mason, 161 U.S. 375, 16 S.Ct. 592, 40 L.Ed. 738, the Supreme Court, speaking through Mr. Justice White, quoted with approval from Curtis v. Inneraity, 6 How. 146, 12 L.Ed. 380, the following language:

"It is a dictate of natural justice, and the law of every civilized country, that a man is bound in equity, not only to perform his engagements, but also to repair all the damages that accrue naturally from their breach. * * * Every one who contracts to pay money on a certain day knows that, if he fails to fulfill his contract, he must pay the established rate of interest as damages for his nonperformance. Hence it may correctly be said that such is the implied contract of the parties."

In Henderson Cotton Mfg. Co. v. Lowell Machine Shops, 86 Ky. 668, 7 S.W. 142, 9 Ky. Law Rep. 831, this court said:

"The true ground upon which to put the allowance of interest is the fault of the party who is to pay the debt. If he has made default of payment, then, ex æquo et bono, he should reimburse the creditor for keeping him out of the use of his money. He should render an equivalent for the use of what is not his own. If there be a specified time for payment, and a failure to then pay, or a demand of payment of a liquidated claim and default, then the debt should, as a matter of law, bear interest from the time of such failure. This is the current of authority, and it is supported by both right and reason." Axton, in his answer, admits that he owes Vance a balance of $2,497 for services, which the record shows were rendered prior to July 12, 1919. That money was then due. The only reason Axton owes this now is he owed it then. He was satisfied in his own mind then that he owed that much. If his conscience then accused him of owing that much, he should have paid it to Vance, and at least eased his conscience. He did not pay it. There may be two reasons why he did not. If he felt that he needed this money worse than Vance did, he should not now, after having had the use of it, object to paying Vance interest for the use of money which he admits should have then been paid to Vance. If, on the contrary, he felt that Vance needed this money worse than he did, and withheld payment in hope that Vance, ex necessitate, would settle on Axton's terms, then he was prompted by an improper motive, and the payment of interest is really an inadequate punishment. This interest is all there is in controversy on the first appeal. The court properly allowed it, and its judgment is now affirmed.

After the entry of this judgment, Axton paid Vance $2,500, thus making a total sum paid of $3,503, and leaving a balance claimed by Vance of $4,497, with interest. The case was prepared and heard before a jury, which by its verdict fixed the value of Vance's services at $5,500, subject to a credit of $3,503, and without interest. The court entered judgment for $1,997. Axton has appealed from that judgment, and has filed seven grounds for a new trial.

After examining appellant's grounds for a new trial, we find: First, the court properly struck from Axton's amended answer his allegation that Vance owed him $1,003, as Vance in his petition admitted receipt of that, hence this plea tendered no issue. We further find that the court did right in striking from appellant's answer his plea that Vance was only to receive 8/15 of this fee, as this was an action by Vance for the value of his services. Anderson was not a party to this suit, and Axton was in no wise interested in the agreement Vance and Anderson had with each other.

In his petition, appellee had alleged that securing the reversal of this judgment saved Axton $25,935. In his answer, Axton admits a saving of $21,000, but insists that was a gross saving, and that it is to be reduced by certain expenses in order to obtain the net saving. The court properly struck all of that, as the question here is the value of Vance's services, and what he may have saved Axton has no place in this pleading, though this saving is an important item of evidence. Axton, in paragraph 2 of his answer, pleaded that he had settled with Anderson, and that, by reason of that, Vance was estopped to claim more than 8/15 of the value of all the services rendered by these two attorneys, and to this plea the court very properly and promptly sustained a demurrer. The agreement alleged clearly does not constitute an estoppel against appellee in this action. The fact that he agreed with Anderson to take 8/15 of the fee of $15,000 to be charged as against 7/15 for his colleague, Anderson, is not inconsistent with his recovering what his own services were reasonably worth. It is admitted by the answer that appellant agreed to pay appellee what his services were reasonably worth--that is, what he is suing for here--he can recover no more--he should recover that much. It is not alleged that appellee had anything to do with or ever knew of the settlement with Anderson. He cannot therefore be chargeable with the consequences of that settlement. This disposes of Axton's first ground for a new trial.

Second, beginning with the filing of his answer, and continuing throughout the case, Axton constantly endeavored to have the court limit the number of witnesses. This the court properly refused to do. By section 904 of the Statutes, the court could refuse to tax as costs more than the allowance to two witnesses, but we know of no authority under which the court may limit the number of witnesses which a party may introduce upon a controverted question. In section 593 of the Civil Code, we find this:

"The court, however, may stop the production of further evidence on a particular point, if the evidence upon it be already so full as to preclude reasonable doubt."

That does not support Axton's contention. It is against him, and the authorities cited in his brief are also against him. The court did not err when it ruled against him.

Third, appellant insists that the hypothetical question propounded to the witnesses by whom Vance sought to establish the value of his services was not properly drawn, and that therefore the evidence of these witnesses should not have been admitted. What this question should be is thus defined in the case of Ky. Traction & Terminal Co. v. Humphrey, 168 Ky. 611, 182 S.W. 854:

"The hypothetical question grouping therein the facts forming the premises upon which the answer of the witnesses must be based must include no facts not shown by some of the testimony to have existed; nor must it omit any relative fact shown by some of the testimony to have existed."

This court has in numerous cases defined the elements that should be considered in determining the amount of an attorney's fee for services rendered. They include the following:

(a) Amount and character of services rendered.

(b) Labor, time, and trouble involved.

(c) Nature and importance of the litigation or business in which the services were rendered.

(d)...