Babcock v. Babcock

• Decision Date: 31 March 1870
• Citation: 46 Mo. 243
• Parties: OLIVER M. BABCOCK, Defendant in Error, v. GEORGE BABCOCK, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 243

OLIVER M. BABCOCK, Defendant in Error,

v.GEORGE BABCOCK, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

R. F. Wingate, for plaintiff in error.

The agreement relied on by plaintiff was champertous, contrary to public policy, and hence void as to both parties; and the court erred in refusing the fourth and fifth instructions. (Gen. Stat. 1865, p. 558; 13 Ind. 117; Chit. on Cont. 657-8.) If the contract was void, the jury, under the second instruction given by the court, should have allowed the defendant for the value of his services and the moneys expended by him in the prosecution of the suits.

Lucien Eaton, for defendant in error.

I. On the pleadings the second count was confessed, and the plaintiff was entitled to judgment for the amount claimed and interest; yet each instruction which was refused concluded with a direction to find generally for the defendant.

II. No champertous contract appeared in the pleadings. The defendant can not defeat a recovery by setting up outside the pleadings a champertous contract made by him. If there was such a contract, and it were void, then defendant could retain of plaintiff's money nothing, or at best the value of his services and his legitimate and proper expenses.

III. The attempted proof of a new contract by defendant when recalled, in rebuttal, was too late.

IV. The laws of Illinois must be proved as any other fact.

CURRIER, Judge, delivered the opinion of the court.

The petition in this cause contains two counts; the first being for money had and received, and the second being for money ($100) advanced. The answer contains no specific denial of any of the material allegations in either count, nor does it set up any defense to the cause of action secondly stated in the petition. As to the cause of action set out in the first count, the defendant pleads accord and satisfaction. The answer shows that the defendant was employed to prosecute a suit against the St. Louis, Alton and Terre Haute Railroad Company for alleged injuries to the plaintiff's wife, claimed to have resulted from the negligence of the railroad company's servants; that a suit was accordingly commenced in favor of the plaintiff and his wife against the company, which resulted in a compromise settlement, after a trial and verdict for the plaintiffs, whereby the railroad company agreed to pay and did pay over to the present defendant the sum of $5,090 in discharge of said suit and cause of action, as also in discharge of a suit and cause of action in which the present plaintiff was suing for personal injuries to himself. The answer then proceeds to show that the defendant had disbursed considerable sums of money in prosecuting the suits against the railroad company, and that his personal services therein were of the value of $2,500; that he accounted with the plaintiff in respect to his disbursements, services, and collections, and that upon such accounting he paid over to the plaintiff the sum of $2,500 as the full balance due him; that the same was accepted and received by the plaintiff in full satisfaction and payment of all his claims upon the fund in the defendant's hands, the balance of $2,590 being allowed to the defendant for his disbursements and services. The plaintiff, by his replication, admitted the employment of the defendant to prosecute said suits, but denied the alleged value of his services and disbursements, as also the alleged facts of settlement, and alleged that the defendant took the suits to prosecute upon a contingent fee, to-wit: twenty-five per cent. of the recovery.

At the trial, the defendant took the affirmation and gave evidence tending to prove the facts alleged by him in defense. The plaintiff then gave evidence in rebuttal and in support of the averments of his replication, whereupon the defendant offered and was permitted to give evidence tending to show that the contract, mentioned in the plaintiff's replication, for a prosecution of said suits upon a contingent fee of twenty-five per cent. of the anticipated recovery, was rescinded and set aside. He further offered to show that a new and independent contract was entered into, by which he was to have one-half the proceeds of the litigation. This proffered evidence was objected to and excluded, and the defendant complains of the exclusion...