Blodgett v. Koenig, No. 25041.

• Court: Missouri Supreme Court
• Writing for the Court: Railey
• Citation: 284 S.W. 505
• Parties: BLODGETT v. KOENIG.
• Docket Number: No. 25041.
• Decision Date: 21 May 1926

284 S.W. 505 BLODGETT
v.
KOENIG. No. 25041. Supreme Court of Missouri, in Banc. May 21, 1926.

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

Action by Henry W. Blodgett against Henry G. Koenig. Judgment for plaintiff, and defendant appeals. Affirmed.

Buder & Buder and E. E. Schowengerdt, all of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

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. Section 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 (U. S. Comp. St. §§ 10212a-10212h), a violation of which was punishable by a fine not exceeding $10,000, or by imprisonment for a term not exceeding 20 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 10 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 $1,000,000, 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 28, 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 4 days, and at the conclusion of the case for the prosecution the court sustained a demurrer 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 100 days to the preparation for and the trial of the case and that $15,000 was a reasonable fee. Nine prominent attorneys testified that a reasonable fee for plaintiff's services would be from $15,000 to $20,000. This will suffice for the case made by the plaintiff.

The defendant testified that he employed Mr. Frumberg and paid him $7,500 for defending him against the charges in the indictment; that Frumberg employed Blodgett on

284 S.W. 506

his own suggestion and agreed to pay him out of his own pocket; that he, the defendant, did not employ plaintiff or agree to pay him a dollar; and that plaintiff's testimony in that respect was a lie. One attorney testified that $5,000 would be a reasonable fee for plaintiff's services; another that $8,000 would be a reasonable fee.

The court gave the following instruction for the plaintiff:

"(1) If the jury find from the evidence that on or about October 28, 1918, the defendant was under indictment in the United States Court for the Eastern Division of the Eastern District of Missouri, charged by the United States government with certain crimes against the laws of the United States, and that defendant, Koenig, employed plaintiff as a lawyer to assist in his defense against said criminal charges, and that defendant did freely and voluntarily, and without any fraud or unfairness on the part of plaintiff having been practiced upon him, knowingly and fairly agree with plaintiff that he would pay plaintiff $15,000 for his services as an attorney in assisting in defendant's defense upon the trial of such criminal charges if the trial thereof should result in defendant's discharge and acquittal, and that plaintiff did then and there accept such employment, and did assist in the trial of defendant upon said criminal charges, and did in all things perform all necessary acts on plaintiff's part, as one of the attorneys of defendant, in defending defendant against said criminal charges, and that at the trial thereof defendant was acquitted and discharged from said criminal charges, then your verdict should be for plaintiff in the sum of $14,000, with 6 per cent. interest thereon per annum from the date of the discharge and acquittal of defendant, which was November 12, 1918."

The court also gave the following instructions for the defendant:

"(2) The court instructs the jury that, if you find and believe from the evidence that the defendant Koenig did not promise or agree to pay to the plaintiff the sum of $15,000 as attorney's fees, then your verdict must be for the defendant.

"(3) The court instructs the jury that, if you find and believe from the evidence that the relation of attorney and client existed between the plaintiff and defendant at the time of the execution of the contract, if any, sued on, then you are advised that the burden of proof is on the plaintiff to show by the greater weight or preponderance of the evidence that the contract, if any, was fair and just, and that the plaintiff took no unfair advantage of the defendant, and that he did not contract for a greater compensation than his services were reasonably worth with reference to the character of the controversy, the skill and labor required, the responsibility imposed, the standing and ability of the attorney, together with the results attained, and defendant's ability to pay.

"(4) The court instructs the jury that, if the relationship of attorney and client had already been existing or established at the time that the contract, if any, in question was made, then and in that event before you can find in favor of the plaintiff and against the defendant in this case you must find and believe from the evidence, first, that the contract, if any, was fair and equitable, and that the defendant acted freely and understandingly with reference thereto; and, secondly, that the amount agreed to be paid is the reasonable value of the services rendered.

"(5) The jury are instructed that the opinions of the parties who testified as experts are merely advisory and not binding upon the jury, and the jury should accord to them such weight as they believe, from all the facts and circumstances in evidence, the same are entitled to receive.

"(6) The court instructs the jury that the charges preferred against the defendant, Koenig, in the indictment read in evidence, are no proof of the truth thereof, and that the defendant in this case, against whom the indictment was found, has been acquitted of the crime charged therein."

The petition, omitting formal parts, alleges, in substance, that defendant was indicted by, the federal grand jury on October 11, 1916; that plaintiff was employed by defendant in connection with the law firm of Frumberg & Russell to defend him and received a retainer of $1,000, and that on October 28, 1918, the defendant undertook and agreed to pay plaintiff a fee of $15,000 for his services in said cause in the event of his acquittal; that plaintiff accepted said employment and took up the defense of the defendant hi connection with said other attorneys and prepared for the trial, which began on November 8 and closed on November 12; that he fully performed his said agreement and undertaking and that through the efforts of himself and said associate attorneys the defendant was acquitted and discharged at said trial; that plaintiff demanded payment of his fee and same has been refused. The answer is a general denial.

I. When the verdict was returned the defendant filed a motion for judgment non obstante.

Learned counsel contend that, it being conceded that the fiduciary relation of attorney and client existed at the time the "alleged contract between the plaintiff and the defendant was entered into, the burden was on the plaintiff to affirmatively establish that the contract was fair, equitable, and just, and that the fee agreed to be paid was reasonable and not excessive, and that, unless such facts were found to exist, there could be no recovery on the contract, and that the verdict of the jury for $7,000 and interest conclusively establishes that $15,000 was not a reasonable fee and is equivalent to a finding that the alleged contract was not binding or obligatory on the defendant; hence the court erred in overruling defendant's motion for judgment non obstante veredicto.

The difficulty with this contention is that this character of motion is available only to the plaintiff and not the defendant; the remedy for the defendant in such or similar circumstances being a motion in arrest of judgment.

284 S.W. 507

"Such a motion can only be sustained when it appears from the record that the allegations in the answer constitute no defense to the action [citing authorities], and even then such a judgment can only be rendered in a clear case on the...