Blodgett v. Koenig

• Decision Date: 21 May 1926
• Docket Number: 25041
• Citation: 284 S.W. 505,314 Mo. 262
• Parties: HENRY W. BLODGETT v. HENRY C. KOENIG, Appellant
• Court: Missouri Supreme Court

284 S.W. 505

314 Mo. 262

HENRY W. BLODGETT v. HENRY C. KOENIG, Appellant

No. 25041

Supreme Court of Missouri

May 21, 1926

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

Buder & Buder and E. E. Schowengerdt for appellant.

(1) Under the pleadings and instructions the plaintiff was entitled to the amount named in his alleged contract or nothing. No quantum meruit cause of action was pleaded. The verdict of the jury for only one-half of the amount mentioned in the petition and instructions was contrary to and in conflict with the pleadings and with the instructions. The verdict and judgment are not responsive to the pleadings or to the instructions, and the variance is fatal. Under the pleadings and instructions the verdict is self-contradictory and is self-destructive. Martin v Barnett, 208 S.W. 278; Real Estate Co., v Investment Co., 150 Mo.App. 626; Cole v. Armour, 154 Mo. 333; Witty v. Saling, 171 Mo.App. 574; Mills v. Met. Railway, 221 S.W. 5; Morey v. Feltz, 187 Mo.App. 650; St. Paul Machinery Co. v. Gaus, 200 S.W. 89; Laclede Const. Co. v. Tudor Iron Works, 169 Mo. 137; Bay v. Wank, 215 Mo.App. 153. (2) When a party declares on a special or express contract, he cannot recover judgment as on a quantum meruit. If he desires to sue or recover on a quantum meruit theory he should have filed pleadings appropriate for such remedy. Under no circumstances or conditions can there be a recovery on quantum meruit where the sole cause of an action is based on an express contract. Shoemaker v. Johnson, 200 Mo.App. 209; Stanley v. Whitlow, 181 Mo.App. 461; Michael v. Kennedy, 166 Mo.App. 466; Quigley v. King, 182 Mo.App. 196; Gillham v. Met. St. Ry. Co., 282 Mo. 118; Lewis v. Slack, 27 Mo.App. 119; Roll v. Inglish, 179 S.W. 771; Davis v. Drew, 132 Mo.App. 503, 144 Mo.App. 174; Jenkins v. Clopton, 141 Mo.App. 74; Law Reporting Co. v. Whitaker, 254 S.W. 715; City of Salisbury v. Const. Co., 261 S.W. 361; Hutchinson v. Swope, 256 S.W. 136. (3) The alleged contract for fifteen thousand dollars attorney's fees was made after the relationship of attorney and client had commenced, and while it was in existence. It, therefore, became plaintiff's duty to show and affirmatively establish that the alleged contract was reasonable and just and that the amount of fifteen thousand dollars mentioned was not in excess of the reasonable value of his services. Failure by plaintiff to establish that the contract was fair and just and that fifteen thousand dollars was a reasonable fee defeats his recovery on the contract. Morton v. Forsee, 249 Mo. 409; Thompson v. Stearns, 197 Mo.App. 344; Barthels v. Garrels, 206 Mo.App. 199; French v. Cunningham, 149 Ind. 632; Whitehead v. Kennedy, 69 N.Y. 466; Burnham v. Heselton, 82 Me. 500; 4 Cyc. 960; White v. Tolliver, 110 Ala. 300; Rose v. Mynatt, 7 Yerg. (Tenn.) 30; Thomas v. Turner, 87 Va. 1; Brock v. Barnes, 40 Barb. 521; Nusan v. Payne, 2 Ves. 200; Dickson v. Bradford, 59 Ala. 581; Waterbury v. City, 68 Tex. 565; Bolton v. Daily, 48 Iowa 348; State v. Standard Oil Co., 194 Mo. 124; Morrow v. Pike Co., 189 Mo. 610. (4) Plaintiff's petition, showing on its face that the relation of attorney and client existed at the time the alleged contract was made, and the general denial, raised the issues of contract or no contract. The burden thereupon fell upon the plaintiff to affirmatively establish that the contract was fair, equitable and just, and that the amount of $ 15,000 was reasonable. Unless such facts were affirmatively established, and found to exist by the jury, there could be no contract. Plaintiff at the trial assumed this burden and attempted to prove such facts. The verdict of the jury for $ 7,000, plus interest, conclusively established that $ 15,000 was not reasonable. The verdict amounts to a finding that there was no contract. Consequently there can be no judgment founded thereon. Authorities cited above. (5) Under the pleadings and the instructions before the jury could return a verdict for plaintiff they were required to find that the alleged contract sued on was fair, equitable and just, and that $ 15,000 was reasonable. The verdict for $ 7,000 plus interest, conclusively establishes that the jury found that $ 15,000 was not reasonable. Therefore, one of the essential conditions and prerequisites for the validity of the alleged contract was found not to exist, and, therefore, there was no contract. There could be no judgment founded thereon. The verdict was consequently for the wrong party. Authorities cited above.

Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) When defendant filed his motion for judgment, upon the verdict as rendered, claiming, in effect, that it was a verdict which entitled defendant to a judgment, such motion was an acceptance of that verdict, as being satisfactory to him, and in seeking, by such motion, for a judgment, upon the verdict, defendant estopped himself, after that motion was overruled, from turning his face around, and, then, claiming that the verdict was wrong, as being in teeth of, and contrary to, the instructions of the court, which told the jury, as defendant claims, that the verdict must be, either, for the full sum sued for by plaintiff, or for nothing. Nixon v. Downey & Wolverton, 54 Iowa 169. (2) There is no issue made, or suggestion to be found, in defendant's answer, that the agreement which plaintiff alleges he entered into with defendant was made at any time while Koenig was a client of Blodgett. To the contrary, Koenig denies that he ever employed Blodgett; he denies that he ever became the client of Blodgett, and he impudently and, mendaciously (as the jury found to be the fact) denies that Blodgett ever entered into his service, or ever performed any service for him, or ever took any part, or had any participation in the trial of his case. In order for Koenig to take advantage of the presumption that Blodgett was dishonest when he entered into the service of defendant, as defendant seeks to now avail himself of, and before the burden was on Blodgett to prove the fairness of the agreement, it was necessary for Koenig to put himself under the protection of that rule and to allege, by proper averments in his answer, such a state of facts as would show that he was acting under the overwhelming shadow of Blodgett's relationship with him, and whereby Blodgett not only had the opportunity to, but actually did, get from Koenig a corrupt, degrading, dishonest, overreaching and crooked agreement. A party cannot deny the existence of the relationship out of which a rule grows and, at the same time take the benefit of the rule, no matter how gracious that rule may be. The reason for the rule must exist, else the rule ceases. Klebe Distilling Co., 207 Mo. 487; Hazzard v. Walker, 132 Mo.App. 465; United States v. Kirby, 7 Wall. 485; Williams v. Hays, 157 N.Y. 541, 43 L. R. A. 253; Tripps v. Nobbs, 136 N.C. 99, 67 L. R. A. 449.

OPINION

Railey, C.

Plaintiff, a duly licensed attorney at law, on May 8, 1919, sued the defendant to recover $ 14,000, the balance due on an attorney's fee, with interest from November 12, 1918. The cause was tried by a jury, resulting in a verdict and judgment for plaintiff, on June 10, 1922, for $ 7,000 and interest, $ 1,545.25, aggregating $ 8,545.25. On appeal to the St. Louis Court of Appeals, that court, of its own motion, transferred the cause to this court because the amount in dispute, exclusive of costs, exceeds the sum of $ 7,500. [Sec. 2418, R. S. 1919.]

The Federal grand jury at the city of St. Louis, in January, 1918, returned an indictment against the defendant, charging him with sundry violations of an Act of Congress, known as the Espionage Act, a violation of which was punishable by a fine not exceeding $ 10,000, or by imprisonment for a term not exceeding twenty years, or by both such fine and imprisonment. The defendant retained Mr. Frumberg, an attorney at law, for his defense. A demurrer to the indictment was sustained, and a second indictment was found against the defendant early in June, 1918. At the defendant's suggestion, Mr. Frumberg retained the plaintiff as counsel for the defendant, because of his experience as United States District Attorney, and of his high standing in his profession, paying him a retainer of $ 1,000 and assuring him that the defendant would compensate him liberally in the event of the defendant's acquittal. Blodgett from that time on took the lead in the defense. A demurrer to the second indictment was sustained. A third indictment, containing ten counts, was returned on October 11, 1918.

The first time Blodgett saw the defendant to know him was at Frumberg's office on Sunday, October 20, 1918. Koenig there told plaintiff he had agreed to pay Frumberg $ 25,000 in the event of his acquittal and that he wanted plaintiff to come into the case. He said money was no object to him; that he was worth a million dollars, and would kill himself if he was convicted. They discussed the case, and Koenig said he would take up the matter of plaintiff's fee in a few days. On October 28th Koenig agreed to pay plaintiff $ 15,000, if acquitted. This proposition was accepted by plaintiff. Blodgett told the defendant that Frumberg had paid him $ 1,000 as a retainer. Koenig said that was all right; that he had instructed Frumberg to pay him that sum as a retainer. The trial lasted four days, and at the conclusion of the case for the prosecution the court sustained a demurrer to the evidence and directed the jury to return a verdict of not guilty, and the defendant was discharged.

The evidence for the plaintiff is that from the time he accepted the retainer he gave his time exclusively for a period of one hundred days to the preparation for and the trial...