Berke v. Murphy
| Decision Date | 29 June 1937 |
| Docket Number | No. 59.,59. |
| Parties | BERKE v. MURPHY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Nathan R. Berke against George B. Murphy. Judgment for plaintiff, and defendant appeals.
Reversed, and new trial granted.
Appeal from Circuit Court, Wayne County; John J. Maher, judge.
Argued before the Entire Bench.
George B. Murphy, of Detroit (Christian H. Lehman and Wilber M. Brucker, both of Detroit, of counsel), in pro. per.
Cashan P. Head, of Detroit, for appellee.
Elizabeth Carmichael Witherspoon received some information in 1933 or 1934 which led her to believe that she was an heir at law of Mr. and Mrs. William H. Yawkey of New York City, who had been deceased for a number of years and who left substantial estates. Acting on this information she consulted her foster brother, Arthur O. Carmichael, an attorney of Detroit, Mich., and an associate of Henry C. Walters, a Detroit lawyer. After an investigation had been made, Carmichael made a demand upon the representatives of the Yawkey estates in behalf of Elizabeth Carmichael Witherspoon for recognition of her heirship; and upon refusal Mr. Carmichael decided to bring suit in New York and to retain able trial counsel. About this time he talked the matter over with plaintiff, an attorney, who was employed by Henry C. Walters with the right to engage in private practice for himself, and as a result of this discussion plaintiff interviewed defendant and finally recommended him to Elizabeth Carmichael Witherspoon as the person best suited to represent her. About August 15, 1935, plaintiff introduced defendant to Elizabeth Carmichael Witherspoon, the result of which was that defendant was retained as an attorney to represent Mrs. Witherspoon upon a contingent fee basis of ten per cent. On September 5, 1935, a written contract was entered into embodying the terms of the oral agreement and also providing that the contract was personal to defendant and unassignable in whole or in part. Following this contractual relationship, defendant effected a settlement with the Yawkey estate whereby Elizabeth Carmichael Witherspoon was paid $250,000 and defendant received a fee of $25,000.
It is the claim of plaintiff that before the defendant was informed that he (defendant) had been retained as attorney for Elizabeth Carmichael Witherspoon, plaintiff and defendant made an oral agreement whereby the defendant agreed to pay plaintiff 20 per cent. of any fees he might recover if he was retained in the case for Mrs. Witherspoon; that on August 20, 1935, he started to look up the law in reference to the claim and continued to do so for four days; that he prepared a brief on the subject-matter and gave the same to attorney Carmichael; that he had prepared a written agreement and asked defendant to sign, but defendant refused, giving as his reason that his client objected to defendant entering into an agreement whereby defendant was to split his fees, but that defendant informed plaintiff not to worry about an unsigned contract, as he (plaintiff) would receive his compensation; that the claim of Elizabeth Carmichael Witherspoon was settled on January 11, 1936, without a lawsuit having been started; and that later defendant offered to pay plaintiff $500 which was refused and upon the failure of defendant to pay the 20 per cent. of $25,000, plaintiff began suit.
The cause was tried before a court and a jury, and resulted in a verdict for plaintiff in the full amount of his claim. At the close of plaintiff's proofs, defendant made a motion for a directed verdict upon the theory that no contract had been proven. This motion was denied. After the jury brought in its verdict, defendant made a motion for judgment non obstante veredicto. This motion and also a motion for a new trial was denied.
Defendant appeals and contends that plaintiff failed to...
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