Bond v. Sanford

• Decision Date: 15 December 1908
• Citation: 134 Mo. App. 477,114 S.W. 570
• Parties: BOND et al. v. SANFORD.
• Court: Missouri Court of Appeals

114 S.W. 570

134 Mo. App. 477

BOND et al. v. SANFORD.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. TRIAL (§ 141)—DEMURRER TO EVIDENCE— WHEN TO BE SUSTAINED.

If evidence relied on by defendant to support a defense, and introduced by plaintiffs, showed affirmatively that they could not recover, a demurrer to the evidence should have been sustained.

2. CONSTITUTIONAL LAW (§ 89)—RIGHT TO CONTRACT.

Persons are free to contract, and the courts will enforce their contracts as made, unless it would be unconscionable to do so.

3. ATTORNEY AND CLIENT (§ 144) — AGREEMENT FOR COMPENSATION—EFFECT.

An agreement by lawyers that their charge for presenting a case on appeal would not exceed a specified sum, unless there was more in the case than they then knew of, made on the client's representation that only two questions were involved in the appeal, does not prevent the lawyers from recovering extra compensation, where six questions arose in the case, instead of two, and were briefed and argued by them; the client being a lawyer.

4. TRIAL (§ 251)—INSTRUCTIONS OUTSIDE OF PLEADINGS—REFUSAL PROPER.

Instructions outside the issues made by the pleadings are properly refused.

5. EVIDENCE (§ 185)—BEST AND SECONDARY— CARBON COPIES.

It was not improper to allow plaintiffs to read carbon copies of letters written to defendant, where he refused to produce the originals on plaintiffs' verbal request, though statutory notice to produce them was not given him.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Henry W. Bond and others against Linus Sanford. From a judgment for plaintiffs, defendant appeals. Affirmed.

Linus Sanford and Randolph Laughlin, for appellant. Bond, Marshall & Bond, for respondents.

BLAND, P. J.

Plaintiffs are partners, located in the city of St. Louis, and engaged in the practice of law. Defendant is also a lawyer and resides in the city of Jackson, Mo. In 1905, a judgment was rendered against defendant, in the Bollinger circuit court, for about $8,000. He appealed from this judgment to the Supreme Court and employed plaintiffs to represent him in said cause. Judge William C. Marshall one of the plaintiffs, briefed and orally argued the case in the Supreme Court for defendant. The action is to recover the reasonable value of plaintiffs' services, plus $18.25, costs expended by plaintiffs for defendant at his instance and request. The petition alleges the reasonable value of plaintiffs' services to be $2,000, alleges a credit of $500, and prays judgment for the balance of $1,500 plus the sum of $18.25. The answer was a general denial and a plea of payment of $500 in discharge of defendant's indebtedness to plaintiffs. The trial was to a jury who returned a verdict for plaintiffs for the sum of $768.25, for which judgment was rendered. Defendant duly appealed from this judgment.

The evidence shows that on April 26, 1906, defendant wrote Judge Marshall soliciting his services. The letter concluded with this sentence: "If you take case please intimate amount of your fee and payments. I expect to prepare to pay promptly." Thereafter the following letters were written and received: Marshall (for Bond, Marshall & Bond) to Sanford, April 27, 1906: "As well as I can now understand the case and the labor to be expended it seems to me that a retainer of $500 would be a proper charge. Then when the brief is prepared and the case is argued, if this is not a sufficient compensation we can agree what other amount, if any, ought to be charged. The retainer of course, to be all that is paid until then. If this is satisfactory you can send us a check for that amount," etc. Sanford to Marshall, May 21, 1906: "The charge of $500 will be satisfactory to me but I would prefer to have the amount settled. After looking over the record you will see there are really but two questions for consideration: First, the construction of the will, one of law; and, second my allowance for services. I can pay by the first of August without inconvenience, and you need not take up the case until payment is made. I only want it understood you will accept the fee. My health is quite poor and I desire to arrange for this matter, and am glad you are associated with the firm so that there will always be some one to look after the case." Bond, Marshall & Bond to Sanford, May 22, 1906: "Yours of the twenty-first inst. received. Unless there is something more in the case than we now know of there will be no further charge than the $500 but in any event there shall be no misunderstanding between us, and you shall be satisfied." Other correspondence followed between the parties, but it is of no importance in the determination of this appeal. Plaintiffs offered evidence tending to prove the reasonable value of their services. Defendant offered countervailing evidence. Plaintiffs also offered evidence showing that, instead of there being but two questions for consideration in the case appealed to the Supreme Court, as represented by defendant, there were in fact six, and that the six were briefed and orally argued by Judge Marshall. Plaintiffs also offered evidence showing that on the appeal the judgment of the circuit court was cut down $4,876.18 by the judgment of the Supreme Court.

1. At the close of plaintiffs' evidence, and again at the close of all the evidence, defendant offered an instruction in the nature of a demurrer to the evidence. The refusal of the court to grant these instructions is assigned as error. Defendant's contention is that plaintiffs, by their letter of May 22d, agreed that no fee in excess of the retainer of $500 paid would be demanded, unless defendant was satisfied that additional compensation should be paid, and, as he was not satisfied to pay more, more could not be recovered. Defendant, on the day before the trial, without notice to plaintiffs, filed an amended answer, in which this defense was expressly pleaded; but this amended answer was stricken out on motion of plaintiffs, because filed out of time. The issues were made by the petition and the answer, containing a general denial and a plea of payment, so defendant's contention is outside the scope of the pleadings. But the evidence upon which he relies to support his point was introduced by plaintiffs, and it...