Beagles v. Robertson

• Decision Date: 18 February 1908
• Citation: 135 Mo. App. 306,115 S.W. 1042
• Parties: BEAGLES v. ROBERTSON.
• Court: Missouri Court of Appeals

115 S.W. 1042

135 Mo. App. 306

BEAGLES v. ROBERTSON.

St. Louis Court of Appeals. Missouri.

February 18, 1908.

Rehearing Granted March 31, 1908.

Rehearing Denied February 9, 1909.

1. CHAMPERTY AND MAINTENANCE (§ 5)— CONTRACTS FOR CONTINGENT FEES—VALIDITY.

A contract by an attorney with his client for a contingent fee, to be paid to the attorney out of the proceeds of a pending suit, if properly entered into, is expressly authorized by Laws 1901, p. 46 (Ann. St. 1906, § 4937-2).

2. CHAMPERTY AND MAINTENANCE (§ 5) — CONTRACT FOR CONTINGENT FEES—VALIDITY OF CONTRACT.

A stipulation, in a contract by an attorney with his client for a contingent fee, that the client shall make no compromise without the attorney's consent is a divisible stipulation, and, even if void as against public policy, will not vitiate the other parts of the contract.

3. CHAMPERTY AND MAINTENANCE (§ 5)— COMPENSATION OF ATTORNEY—CONTINGENT FEES—VALIDITY OF CONTRACT.

A stipulation in a contract by an attorney with his client for a contingent fee that the client

shall make no compromise without the attorney's consent is valid, and not opposed to public policy, as indicated by Attorney's Lien Act (Laws 1901, p. 46; Ann St. 1906, § 4937-2), restricting compromises by litigants to the detriment of the attorney's lien.

4. ATTORNEY AND CLIENT (§ 147)—CONTINGENT FEES—VALIDITY OF CONTRACT.

Facts held insufficient to show fraud or duress by an attorney in obtaining his client's signature to a contract for a contingent fee.

5. ATTORNEY AND CLIENT (§ 166)—ACTIONS FOR COMPENSATION—EVIDENCE.

An attorney seeking to enforce a contract authorized by the attorney's lien act for a contingent fee, which does not appear to be exorbitant, is not bound to assume the burden of proving that he did not procure it by fraud or an abuse of confidence.

6. ACTION (§ 36)—CHANGE IN FORM OF ACTION—MONEY RECEIVED—CONTRACT.

Where defendant sets up a special contract with plaintiff, and the same is established, the rights of the parties must be determined by it, though in form the suit is one for money had and received, and not on the contract.

7. ATTORNEY AND CLIENT (§ 154)—COMPENSATION —RETENTION FROM FUNDS IN HANDS OF ATTORNEY.

Where a contract for a contingent fee gives the attorney a lien on the proceeds of the client's claim, he may lawfully retain his fee out of the proceeds, if he has performed his obligation as attorney.

8. JUDGMENT (§ 336)—OPENING OR VACATING.

A party against whom a decree is entered on an unauthorized settlement by his attorney may obtain relief by motion filed during the term to set it aside, or by a bill in equity filed afterwards.

9. PRINCIPAL AND AGENT (§ 175)—RATIFICATION —EFFECT.

An agent's unauthorized act, if ratified, becomes as binding and effective as if done under original authority.

10. ATTORNEY AND CLIENT (§ 103)—RETAINER AND AUTHORITY—RATIFICATION BY CLIENT.

One who, with full knowledge of the facts, brings suit against his attorney for the proceeds of an unauthorized settlement made by the attorney ratifies the settlement, and is bound by its terms.

11. PRINCIPAL AND AGENT (§ 75)—MUTUAL RIGHTS—RATIFICATION OF AGENT'S ACTS.

The principal's ratification of his agent's unauthorized act releases the agent from liability to the principal for exceeding his powers.

12. PRINCIPAL AND AGENT (§ 75)—MUTUAL RIGHTS—RATIFICATION.

After ratifying an agent's act, the principal may recover money received by the agent for the use of the principal, if the agent has no lien on it, or a right to retain it, for a debt due to him.

13. ATTORNEY AND CLIENT (§ 103)—COMPENSATION —PERFORMANCE OF SERVICES.

An attorney is entitled to retain his compensation out of proceeds of an unauthorized compromise, which has been ratified by his client.

Error to Circuit Court, Reynolds County; Jas. D. Barnett, Judge.

Action by James H. Beagles against George Robertson. From a judgment for defendant, plaintiff brings error. Affirmed.

This is an action instituted against the defendant for money had and received for the use of plaintiff, the sum being laid at $1,250. Defendant is charged with receiving said sum of money for the use of plaintiff December 13, 1903, and after so charging the petition states the circumstances under which the money was received. From the averments of the petition, the answer, and the reply it appears that defendant, who is an attorney at law in the city of Mexico, was the attorney of plaintiff in an action instituted against William T. Atkinson and E. R. Locke, to the January term, 1903. The case was reset for trial February 12, 1903, and on said day the trial was begun and continued to the following day when the litigation was compromised. The petition charges that defendant, while acting as the professional and confidential adviser of plaintiff, and in order to obtain more compensation for his services as attorney than they reasonably were worth, without authority from plaintiff, and without his knowledge or consent, compromised and settled the suit, and caused a decree to be entered therein against plaintiff's interest and rights. The petition charges further that Robertson in the settlement "received for plaintiff, by virtue of being his attorney, a check from Mrs. Grace Beagles for the sum of $1,200, said check being executed and signed by Locke and Atkinson, the defendants in the aforesaid suit, which check was duly paid to the said George Robertson, and the said George Robertson received and accepted and retained said sum so paid, knowing the same rightfully belonged to plaintiff, and all done unknown to plaintiff." It is further charged that plaintiff learned of these facts in March, 1903, and demanded payment of the sum received by defendant, and defendant refused to pay it. The answer admits defendant represented plaintiff in the suit against Atkinson and Locke; admits the setting of the case for trial; the beginning of the trial February 12th; its continuance into the next day, and that on said second day the case was settled and compromised; avers the settlement was made with the knowledge and consent of plaintiff, and was then approved, and has been subsequently approved, by him; admits also the reception and cashing by defendant of the check of Atkinson and Locke for $1,250; but avers this money was paid to him according to the terms of said settlement and compromise, on account of, and in satisfaction of, defendant's fees for professional services to plaintiff. After denying the other allegations of the petition the answer sets up the facts pertaining to the controversy, and states them as follows: In the year 1900 plaintiff was interested in about 800 acres of land in Audrain county, some of which he owned in fee simple, and in the remainder he had a life estate. Said lands were sold under execution for the payment of a debt plaintiff owed the Southern Bank of Mexico, and at the sale were bought in by the bank at a nominal price, the title being taken in the name of H. A. Ricketts. Afterwards Ricketts conveyed the lands to Atkinson, to whom plaintiff was also indebted, and Atkinson and plaintiff, in December, 1900, entered into a contract to the effect that when plaintiff should pay Atkinson, within a given time, what he owed him, the latter would convey the lands to plaintiff. Afterwards Atkinson sold an interest in the lands to E. R. Locke, and affairs were in this posture when defendant was employed by plaintiff to institute suit against Atkinson and Locke for the recovery of the lands; plaintiff claiming the indebtedness to Atkinson had been paid and he was entitled to a reconveyance. The answer states also that prior to this employment plaintiff had employed defendant as attorney in two other suits in the circuit court of Audrain county; one being a suit by plaintiff to have a judgment in favor of his wife for alimony and support modified in a material respect, and the other a suit by plaintiff and his wife to recover possession of a lot in the city of Mexico. The answer further avers plaintiff and defendant entered into a written contract regarding defendant's compensation as plaintiff's attorney. This contract is set out in full in the answer. It recites the employment of defendant as plaintiff's attorney in the suit to be brought against Atkinson and Locke, and also in the other two suits, and then proceeds as follows: "Now it is agreed that the said George Robertson will, in his capacity as attorney, conduct the case against the said Atkinson and Locke to the end of the litigation, subject to the right of the said Beagles to compromise the same should a suitable compromise be offered. And for his services the said George Robertson shall have one-fourth of whatever is gained by said Beagles in the said suit against the said Atkinson and Locke; he is to have one-fourth of whatever judgment, if any be entered, for rents and profits, or for the use of said premises, and a one-fourth interest in the lands against [gained] or any interest therein, and if this suit is compromised before the trial in the circuit court, then the said Robertson is to still have one-fourth so gained, and if an appeal is taken to any appellate court in said action, then the said Robertson is to have one-third of the amount of whatever may be gained after said appeal is taken, either by compromise or suit, and said George Robertson is hereby employed to look after all collateral matters connected with said action against said Atkinson and Locke and continue in said matter, whatever form it may assume, to the end of the litigation. And it is further agreed that for his services he shall have a lien upon the amount so gained and particular reference is hereby made to the petition filed in said cause for a particular description of the lands in litigation, and it is further agreed that said Robertson will keep an account of all services performed for the said Beagles in the other two cases and any business done for said...