Bishop v. Bucklen

• Decision Date: 17 May 1945
• Docket Number: No. 28158.,28158.
• Citation: 60 N.E.2d 872,390 Ill. 176
• Parties: BISHOP v. BUCKLEN.
• Court: Illinois Supreme Court

390 Ill. 176

60 N.E.2d 872

BISHOP

v.BUCKLEN.

No. 28158.

Supreme Court of Illinois.

March 21, 1945.

Rehearing Denied May 17, 1945.

Appeal from Third Division Appellate Court, First District, on Appeal from Circuit Court, Cook County; Walter J. La Buy, Judge.

Action by Howard F. Bishop against Harley R. Bucklen, individually and as trustee of the Bucklen trust, to recover attorney's fees under a contract for services in a special assessment proceeding. From a judgment of the Appellate Court, 322 Ill.App. 529, 54 N.E.2d 876, which reversed a judgment for plaintiff, the plaintiff appeals.

Reversed and remanded with directions.

Charles F. Short, Jr., of Chicago, for appellant.

Bell, Boyd & Marshall, of Chicago (David A. Watts, of Chicago, of counsel), for appellee.

STONE, Justice.

This court granted appellant leave to appeal from a judgment of the Appellate Court, First District, reversing a decree of the circuit court of Cook county which awarded appellant a judgment against appellee, Harley R. Bucklen, individually and against the assets of a trust estate of which Bucklen was trustee, in the sum of $10,575. The Appellate Court directed that the second amended complaint be dismissed for want of equity.

Appellant, an attorney, on December 23, 1937, filed his complaint at law against appellee, Harley R. Bucklen, individually and as trustee of the Bucklen trust, to recover attorney's fees under a contract for services in a special assessment proceeding in connection with a contemplated State street subway. Appellee, Bucklen, by his answer, put in issue the material averments, regarding the alleged contract and the breach thereof. The cause was transferred to the chancery side of the court and tried before the chancellor. Appellant's complaint alleged he was employed by the trustees of the Bucklen trust, under a verbal contract, to defend a special assessment against two pieces of real estate located at 701-3 and 807-9 South State street, against which special assessments were levied to pay for the construction of a subway in South State street; that he spent a great deal of time in preparation for trial and that thereafter the special assessment proceedings were dismissed, due to his objections and attack upon the proceedings, and that the subway was afterward constructed as a public improvement without any special assessments.

Appellee defended upon the theory that the contract of employment was not to defeat the assessment but to reduce it, consequently no fees could be earned for a defeat of the assessment proceedings, assuming his efforts had something to do with the ultimate dismissal of those proceedings. Appellee's answer also alleged that appellant's efforts in the subway special assessment case must, because of the contemporaneous trial of a condemnation case for the widening of State street north of the Chicago river, have been quite limited in character, and that even if the contract were to defeat the subway assessment, appellant's efforts had no causal connection with the dismissal. It was also alleged that appellant represented interests in conflict with those of appellee in the subway assessment case and in the condemnation case, and further alleged that since appellant, an experienced lawyer, made his contract with trustees, concerning trust property, knowing them to be trustees, there was no intention that the trustees be individually liable.

In 1930, the city council of the city of Chicago passed ordinances designed to give the city a unified local transportation systemwith elevated and surface lines combined under single ownership. September 20, 1930, an ordinance was passed providing for the widening of North State street, north of the Chicago river, along the route of the proposed subway. Appellee owned no property within this latter proposed improvement. On December 15, an ordinance was passed levying a special assessment for the construction of a subway in State street from approximately Roosevelt road on the south, to Chicago avenue on the north, and for repaving the street. The unification ordinance was approved by a referendum and the city instituted in the superior court of Cook county, in 1931, a condemnation case (hereinafter referred to as the widening case), for the widening of North State street from the river to Chicago avenue, and, thereafter, a special assessment proceeding for the construction of the subway (hereinafter referred to as the subway case), covering property along the entire route of the subway. Validity of those ordinances was upheld by this court in People v. City of Chicago, 349 Ill. 304, 182 N.E. 419.

At the time this contract was entered into, Harley R. Bucklen was cotrustee with Foreman State Trust and Savings Bank of the aforesaid properties. Later, upon the failure of the bank, appellee, Bucklen, became sole trustee. February 4, 1931, William C. Miller, one of the trust officers of the Foreman Bank, appellee, Bucklen, and appellant met, and appellant was employed to represent the trustees in the subway case. The only written memoranda of the conversations and employment are two letters, dated February 5, written by Miller to appellant, and his replies thereto. One letter is headed as follows: ‘Re: H. E. Bucklen Trust’, and reads: ‘We handed to you yesterday notice from the Board of Local Improvements affecting property at 807-9 South State street in the sum of $22,500. This property is about a block south of Seventh street and may or may not be affected by subway openings. We feel that this is a matter for special consideration in that the building may be materially damaged by the building of the subway and possibly greatly benefited if openings are made at such a point as will be at or near this property. It is our understanding in conversation with you and Mr. Bucklen yesterday, that your service charge, including all court costs, all attorneys' fees, all fees of real estate experts, and any other items, shall be reasonable depending upon circumstances, the amount of time involved, etc., and in no event to exceed 25% of the savings or reduction of the assessment.’ The other letter, headed ‘Re: Quigley Trust Under Bucklen Will,’ stated the assessment against that property to be $19,800. Otherwise it was in substance the same as the one just quoted. Both letters were signed by Miller as vicepresident of the bank.

On February 17, 1931, appellant wrote Miller two letters, one with the heading ‘In re: H. E. Bucklen Trust,’ reading: ‘Referring to your letter of the 5th inst., in regard to the above entitled matter, I have looked after the objections in this case and will handle the matter in accordance with the terms outlined in your letter of that date. If the owner has a survey and plans showing the first story and foundations, particularly with reference to whether there are caissons or floating foundations, depth, etc. with the elevation marks, it would be very helpful in preparing the necessary cross petition. * * * P. S.-Please advise the correct legal title-in other words, the exact name of the owner.’ The second letter of that date, headed ‘In re: Quigley Trust Under Bucklen Will,’ was in substance the same.

Appellant testified he was employed by Bucklen and Miller to defeat the special assessment on a contingent-fee basis of 25 per cent. Miller testified in substance that appellant was employed to secure a reduction of the subway assessment, not to defeat the subway proceeding, for which he was to be paid a reasonable fee, not to exceed 25 per cent of the savings effected. Bucklen did not testify. Appellant also represented a number of clients in both the so-called widening case and the subway case, both of which were pending in the superior court and assigned to the same judge. Though the widening case, to which appellee was not a party, was tried before the subway case, by direction of the trial judge, the two cases were so interrelated that much of the work done in the trial of the former had a direct bearing on the final disposition of the latter, since the validity of the subway ordinance was attacked in the widening case. The trial of that case occupied much time between April 27, 1931, and March 3, 1932. The transcript of record contained over 11,000 pages. Appellant was most active in presenting evidence in that hearing.

In December, 1932, the city withdrew its motion for trial of the subway assessment case. That case was continued, from time to time, pending the termination of the trial of the widening case. On April 30, 1934, pursuant to the mayor's recommendation, the 1930 subway...