Boyd v. G.W. Chase & Son Mercantile Co.
| Decision Date | 01 February 1909 |
| Citation | 115 S.W. 1052,135 Mo.App. 115 |
| Parties | JAMES W. BOYD, v. G. W. CHASE & SON MERCANTILE COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Thomas F. Ryan for appellant.
(1) The court by its finding and judgment found that the proceeds of the settlement were represented by an amount found by adding to the amount paid in settlement of each case, the amount due to the attorney as shown by his contract. In this, the trial court's finding was opposed to the true spirit of the statute, and it has been so held by the Supreme Court and the St. Louis Court of Appeals, as shown by the following cases Yonge v. Transit Co., 109 Mo.App. 236; O'Connor v. Transit Co., 198 Mo. 622; Taylor v. Transit Co., 198 Mo. 715. In each of the foregoing cases the plaintiff sued to recover a percentage on the amount paid in settlement, and in each of said cases the court in affirming the judgment and the reasons given in support thereof, found that the proceeds of the settlement were the amount paid in settlement of the case. The only case in which a different rule has been declared is the case of Curtis v. Railway, reported first in 118 Mo.App. 341, and again in 125 Mo.App. 369. The facts in that case, however were different from the facts in this case.
Perry A. Brubaker for respondent.
(1) Under the law as laid down by this court in the case of Curtis v. Railway, 118 Mo.App. 341, and in Curtis v. Railway, 125 Mo.App. 369, the amounts found by the trial court are not only not excessive, but are not as large as they should be under the evidence, law and admissions in the case. (2) Respondent, under the facts as admitted by the appellant, and under the law in the case, is entitled to recover the amount sued for in each count. Curtis v. Railway, 118 Mo.App. 341; Curtis v Railway, 125 Mo.App. 369; Wait v. Railway, 204 Mo. 491.
The plaintiff states two different causes of action in his petition.
The fact in relation to the first count or cause is as follows: The plaintiff as an attorney at law brought suit for Anna May Dakin (now Conroy) to recover damages in the sum of $ 30,000 for injuries she sustained on account of the alleged negligence of the defendant corporation while she was in its employ and recovered judgment for $ 5,000, which on appeal to the Supreme Court was reversed and remanded for a new trial. On the trial, it was admitted that plaintiff had a contract with his client by which he was to receive thirty-five per cent of the cause of action and that defendant had been served with notice of such contract in accordance with the act of 1901 creating attorney's liens. On November 6, 1906, after the cause had been reversed and remanded, plaintiff's client, Mrs. Dakin, without the knowledge or consent of plaintiff compromised and settled her suit for $ 2,000 paid to her by the defendant. Mrs. Dakin testified that it was a part of the consideration for said compromise that defendant was to pay plaintiff's fee. However, the written contract executed by the parties stipulates that defendant will pay to Anna May Dakin (Conroy) "any money that she may be compelled to pay to said J. W. Boyd, her attorney," etc. A jury was waived and the cause submitted to the court. The finding and judgment were for the plaintiff in the sum of $ 960.28.
The facts relating to the second count were as follows: The plaintiff as an attorney at law brought suit for Mattie E Leslie to recover damages in the sum of $ 20,000 for injuries she received by reason of the alleged negligence of defendant while she was in its employ. It was admitted that plaintiff had a contract with his client by the terms of which he was to receive forty per cent of the cause of action and that defendant had been served with notice of such contract in accordance with the act of 1901 creating attorney's liens. Plaintiff's client without his knowledge or consent on January 22, 1907, compromised and settled her suit for $ 1,800 paid to her by defendant. Mrs. Leslie testified that it was a part of the consideration for the said settlement that defendant was to pay plaintiff's fee. But the contract in writing executed by the parties and evidencing the settlement provided that defendant would pay to the said Leslie any amount she might be required to pay to her attorney not to exceed forty per...
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