Bosson v. Brash
| Decision Date | 09 November 1916 |
| Docket Number | 9,141 |
| Citation | 114 N.E. 6,63 Ind.App. 86 |
| Parties | BOSSON v. BRASH |
| Court | Indiana Appellate Court |
From Marion Circuit Court; Charles Remster, Judge.
Action by Tirza B. Brash against William Bosson. From a judgment for plaintiff, the defendant appeals.
Affirmed.
William Bosson, for appellant.
W. W Lowry, for appellee.
This is a suit to recover money alleged to be due appellee from appellant. The complaint was in four paragraphs. The first was for money had and received. The second paragraph alleges in substance that on January 11, 1908, appellant received from William Lowe Rice, receiver, $ 3,441.63 belonging to appellee, and then and there agreed to pay the same to her that before bringing this suit, on July 27, 1910, appellee demanded payment of said sum from appellant and payment was by him refused. The third paragraph avers that appellant, a practicing attorney, was employed by appellee to collect for her certain promissory notes that he collected thereon $ 3,441.63 on January 11, 1908, and on January 16, 1908, paid appellee the sum of $ 2,306.90. and retained $ 1,135.73 as attorney's fees; that on July 27, 1910, appellee demanded from appellant the sum of $ 791.75 and payment was refused; that ten per cent. of the amount collected was a reasonable fee for appellant's services; that the amount retained by him was exorbitant and unreasonable. The fourth paragraph is substantially like the third except it is alleged that the notes provided for five per cent. attorney's fees, and that appellant agreed to accept that amount in payment for his services.
The complaint was answered by a general denial and by a paragraph of special answer, which set up in detail appellant's employment and services as attorney for appellee; that at the time of his employment he informed appellee that his fee would amount to from twenty to forty per cent. of the amount collected; that he charged and retained for his fees thirty-three per cent. of the amount collected; and that appellee stated that such fee was satisfactory to her and it was agreed that the sum of $ 1,135.73 was due him as attorney's fees. To the special answer appellee filed a reply of general denial. A trial by jury resulted in a verdict for appellee for $ 300.
The error assigned and relied on for reversal is the overruling of appellant's motion for a new trial. A new trial was asked on the ground that there was error in the assessment of the amount of recovery, it being too large; that the verdict is not sustained by sufficient evidence and is contrary to law. The propositions urged by appellant are: (1) That the acceptance by appellee without objection of the amount collected, less the thirty-three per cent. retained by him as attorney fees, was binding on her as to the amount of such fee; (2) that the retention by him of his fee and the remittance to and acceptance by appellee of the balance of the amount collected resulted in an account stated, binding upon both parties to the transaction; that the retention by appellee for so long a time of the amount received by her from appellant is conclusive evidence of her assent to the settlement.
Appellee contends that the idea of an account stated between the parties is an afterthought of appellant, and that there is nothing in the pleadings or proceedings of the trial up to the filing of the motion for a new trial to suggest such theory; that, on the part of appellee, the contention was that appellant owed her money received by him as her attorney and not accounted for to her; that the amount retained by him as attorney fees was unreasonable and exorbitant and was never agreed to by her; that appellant defended the suit on the ground that the amount retained by him was a fair and reasonable fee, and that appellee had given her assent thereto.
The pleadings and records of the trial sustain appellee's contention as to the theory of the pleadings and the theory on which the case was tried below. The theory of a pleading must be determined by a consideration of its general scope and tenor, and the theory adopted by the trial court will be adhered to on appeal, where such pleading, from its plain terms, is susceptible of such construction and theory. The application of this rule is emphasized where it also appears from the record that the parties themselves proceeded on such theory, as in the present instance. McKinley v. Britton (1913), 55 Ind.App. 21 24, 103 N.E. 349; Euler v. Euler (1913), 55 Ind.App. 547, 553, 102 N.E. 856; Knight, etc., Co. v. Miller (1908), 172...
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