Bockman v. Rorex

• Decision Date: 23 February 1948
• Docket Number: No. 4-8413.,4-8413.
• Citation: 208 S.W.2d 991
• Parties: BOCKMAN v. ROREX.
• Court: Arkansas Supreme Court

208 S.W.2d 991

BOCKMAN v. ROREX.

No. 4-8413.

Supreme Court of Arkansas.

February 23, 1948.

Appeal from Circuit Court, Phillips County; D. S. Plummer, Judge.

Action by Sam Rorex against James Bockman to recover attorney's fee. From an adverse judgment, defendant appeals.

Affirmed.

K. T. Sutton, of Helena, and Wayne W. Owen, of Little Rock, for appellant.

J. G. Burke, John I. Moore and G. D. Walker, all of Helena, for appellee.

McFADDIN, Justice.

This is a dispute between professional men. A lawyer sued a doctor for an attorney fee, and the doctor has appealed.

Agents of the Internal Revenue Department investigated the income tax returns of appellant, Dr. James Bockman of Helena, Arkansas, and on August 20, 1946 served notices on Dr. Bockman of additional assessments of taxes, penalties and interest for the years, and in the amounts as follows:

                     1942          $12,050.00
                     1943           17,175.00
                     1944           21,700.00
                     1945           15,375.00
                                   __________
                         Total     $66,300.00
                

A tax lien notice (under Section 3670 et seq. of the Internal Revenue Code of the United States, 26 U.S.C.A. Int.Rev.Code, § 3670 et seq.) was placed of record in Phillips County. Dr. Bockman was given ten days in which to pay the said amount of money, which he had in several safe deposit boxes. The investigating agents had located and counted more than this amount of money.

First, we give Dr. Bockman's version: He testified that he had already employed an attorney of Helena and an income tax expert of Memphis, Tennessee; but he felt that he needed the services of another attorney, so he went to a friend in Helena — Mr. Bealer — to get a letter of introduction to Mr. Sam Rorex, the appellee, an attorney in Little Rock. Bockman testified that he said to Bealer: "You know the trouble, and I would like to contact Mr. Rorex." The meeting between Bockman and Rorex — arranged pursuant to Bockman's request — was at about 9:30 a. m., August 27, 1946 at the Albert Pike Hotel in Little Rock. Bockman says that as soon as he advised Rorex the nature of the business, Rorex went to the Internal Revenue office in Little Rock, and ascertained from the officers the exact nature of the case, and returned to Bockman who was waiting in the lobby of the hotel. We quote from Bockman's own testimony:

"* * * he came back very excited * * *, and we got into his room and he said, `Well, I am sorry, old boy, you have got two warrants for your arrest out against you and you had better get that money right up there, you had better do it immediately.'

"Q. Did he say he was unable to get it reduced? A. He said for me to put up the money, he said, `This is going to cost you five thousand dollars. You had better get that money. They are only giving us two hours and you had better get that money.'

"Q. What did you tell him when he said it was going to cost you five thousand dollars? A. I did not answer him one word."

Bockman had what he claimed to be $66,300 in currency in his automobile. He took Rorex to the office of the Internal Revenue Department in Little Rock, and asked Rorex to assist his secretary and the revenue agents in counting the money. Bockman left while the counting was in progress, but his secretary remained. Finally, it was ascertained that the necessary amount was not present, and later Bockman supplied it; and Bockman says this was the end of Rorex' services. He claimed that all he wanted Rorex to do was to obtain a reduction in the amount required to be posted; but Bockman admitted that Rorex advised him that Rorex' fee would be $5,000, and that Bockman — while he never agreed by words — did immediately avail himself of Rorex' services without objecting to the stated fee.

Now, we give Rorex' version of the transaction: He testified that he met Bockman on the morning of August 27th by previous appointment. We quote Rorex' testimony:

"He told me these agents of the Internal Revenue Office and the Collector's Office * * * had searched his lock boxes and found almost eighty-five thousand dollars in currency. * * * I said, `You are faced with two charges. Did you make a proper income tax return?'; and he said, `No.' Then I said, `You have been charged with failing to make a proper return. Both are penitentiary offenses, but I am not trying to scare you.' He said, `I want to employ you to represent me'; and I said, `On both the criminal and the civil side, too?'; and he said, `Yes'; and I said, "* * * I will have to charge you five thousand dollars to represent you', and he said, `That is all right.'

* * * * * *

"* * * I said, `Doctor, you had better sit here while I go over and see what kind of shape you are in. They might have a warrant for you and they might put you in jail.' I went to the Internal Revenue Department and Mr. Thompson was not in and I talked to Mr. Hurley, the field agent. They had an information on the desk and an information for his arrest; and I made the best speech I could for the man about his arrest; and I got Mr. Emory and Mr. Culpepper and Mr. Gooch (who succeeded me). I got an agreement that if it was satisfactory with the Treasury Department, there wouldn't be any prosecution. I went back and told Doctor Bockman what the understanding was; that they wanted the money and that he was about to be arrested; that I had been advised that I had to have the money in there by eleven o'clock. It was twenty or thirty minutes to eleven then. I told Doctor Bockman, and he said it was satisfactory. * * * We went out and got in the car and went to the Collector's office. * * * This money was in one's, five's, ten's and twenty dollar bills in paper sacks. We spread it out on the tables and Doctor Bockman and I stood by and watched them count it. * * *"

Rorex continued:

"* * * We started before noon, and along about four o'clock Doctor Bockman said he had to come back to Helena. * * * and he sent for some lady over in town and she came and stood by and helped count the money. * * * When they finished the counting, * * * there was about seventeen thousand dollars short.

* * * * * *

"Q. What effect did that have on the settlement you had made? A. They blew up, and I tried to get Doctor Bockman on the telephone. He wouldn't answer the phone, and I had to call Bealer; and he called, and talked to his secretary, and told her they had better get that money over there.

"Q. Then what happened? A. I asked them to give me until Thursday to get the money over there, and Doctor Bockman's secretary came over.

"Q. Did she ever come to see you? A. No, sir, she never did.

"Q. Did you obtain a release of the lien? A. Yes, sir, this lien was to be released when this money was paid in. It was released: not only sent to the court house here for the release, but it was sent to Little Rock.

* * * * * *

"Q. What remained to be done after the money was paid in? A. Nothing in the world except for the Internal Revenue Agents to tell Doctor Bockman how much they were going to pay him back."

We do not lengthen the opinion by further detailing of the testimony. The evidence is voluminous. Many witnesses testified. When Bockman paid the $66,300, and received a release of lien and a feeling of security from criminal prosecution, he refused to pay Rorex the $5,000 fee or to cooperate or correspond with him in any way. Thereupon Rorex filed this action against Bockman for the $5,000 fee. The case was tried to a jury, and resulted in a verdict and judgment for Rorex for $5,000, and this appeal is an effort to reverse that judgment. Appellant urges six contentions for reversal. These, summarized, relate to (a) instructions as to the amount of recovery, and (b) the court permitting the plaintiff's attorneys to cross-examine Dr. Bockman as to having been previously convicted of misdemeanors. We discuss these points.

1. Instructions as to the Amount of the Recovery. The trial court told the jury in plaintiff's instruction No. 1:

"If you find from a preponderance of the evidence that the defendant entered into a contract of employment with the plaintiff and agreed to pay a fee of $5000, and that after such employment had been partially performed, then the defendant failed to permit the plaintiff to fulfill the balance of the contract to be performed, and that the plaintiff was willing and able and attempted to fulfill such employment but was precluded from doing so by the defendant, then in that event your verdict will be for the plaintiff for the amount of the contract, or $5000.

"You are instructed that if you find from a preponderance of evidence that Dr. Bockman employed Mr. Rorex to render legal service and agreed to pay a fee of $5000, and that Mr. Rorex was at all times ready, willing and able to render the agreed services, then it would be no defense that Dr. Bockman may have employed others to render the same services, and your verdict will be for the plaintiff for $5000."

To this instruction the defendant offered the following objection: "The defendant objects to plaintiff's instruction No. 1 because under the instruction the only verdict the jury could return, if they should return a verdict for the plaintiff, would be for $5000, and no other amount, and if they should find that the plaintiff performed some service for the defendant, but not all of the services required in the alleged contract, then the plaintiff would not be entitled to a verdict for the full amount of $5000."

In the excellent briefs filed by both sides, there is ably argued the question of whether the amount of the fee should have been left to the jury to be fixed. Without reviewing all of the cases cited, we think the entire issue here is settled by our holding in Brodie v. Watkins, 33 Ark. 545, 34 Am.Rep. 49, which is our leading case on attorney's fee in a situation where the client refuses to permit the attorney to perform. In that case Mr. Justice Eakin stated — in language which has become classic — the law...