Brock v. Brock

• Decision Date: 13 July 1911
• Docket Number: 96-1911
• Citation: 47 Pa.Super. 321
• Parties: Brock, Appellant, v. Brock
• Court: Pennsylvania Superior Court

47 Pa.Super. 321

Brock, Appellant, v. Brock

No. 96-1911

Superior Court of Pennsylvania

July 13, 1911

Argued April 14, 1911 [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. No. 1, Allegheny Co.-1905, No. 109, on certificate for defendants in case of Lem. S. Brock v. C. C. Brock and Franklin P. Iams.

Assumpsit to recover moneys collected by attorneys at law. Before MacFarlane, J.

At the trial F. P. Iams, one of the defendants, was asked this question:

" Q. What did Cyrus C. Brock say to you?"

Objected to by plaintiff's counsel as incompetent, irrelevant and immaterial.

The Court: In view of the other testimony the objection is overruled and exception noted.

" Q. What did Cyrus C. Brock say to you with reference to the contract and with reference to your employment, and with reference to what you were to do in pursuance of your employment?

A Cyrus said substantially what Lem had said to me before, that they had entered into a contract for recovering the money or capital stock that was in controversy between Lem S. Brock and the Lawtons, the Lawton Mortgage Company, and the other associated companies.

Q. What did he tell you the terms of the contract were?"

Plaintiff's counsel object that it would be a statement made in the absence of Lem S. Brock, the plaintiff, and would be a mere repetition of what some one had said to the witness on the stand, and it is therefore immaterial, irrelevant and incompetent.

Objection overruled and exception noted for plaintiff.

" A. He told me that he had arranged with Lem S. Brock, by which Lem S. Brock was to give in consideration of the carrying on of the litigation proposed between Lem and the Lawtons, fifty per cent of the recovery over and above $ 2,500. He said that Lem had authorized him to communicate that fact to me and see whether or not I would enter into the case upon these terms, and with the understanding that I was to participate in the money to be retained if any was recovered. He also said that Lem had always said he was not able to pay fees and that the lawyers would get nothing unless a recovery was had and they would get nothing unless more than $ 2,500 was recovered.

Q. What was the nature of the plaintiff's claim; that is, how did he represent to you that the claim arose?"

Objected to by plaintiff's counsel as immaterial and irrelevant, for the reason that the witnesses have testified that a certain arrangement was made, one testifying to one arrangement, and the others to another. It amounts to an attempt to either repudiate the contract they went into or show a basis of recovery other than that specified by both parties.

Objection overruled and exception noted for plaintiff.

Objected to by plaintiff's counsel as incompetent, irrelevant and immaterial.

Objection overruled and exception noted for plaintiff.

" A. The controversy and subject-matter of the contract as I learned it from C. C. Brock at the time he brought up the papers in pursuance of a conversation with plaintiff and further what I learned from conversation and statements of the controversy made by Lem S. Brock and Cyrus C. Brock, in the presence of each other and the presence of myself, were as follows: Lem S. Brock claimed that he had been employed by the Lawton Mortgage Company, Incorporated.

Q. What is the partnership?

A. The partnership, the incorporated firm of Lawton Mortgage Company, to do certain work for them. I believe he made appraisements for the purpose of securing and passing mortgages, and other work about the office; perhaps soliciting some insurance. He said after he was employed a short time, a few months, that Charles B. Lawton said to him that he wanted him to go ahead and take just as little out of the firm as possible, as he could get along with, and push the business as hard as possible; with the object of afterwards incorporating the business and his, Brock's, becoming a part of the business. He said that after that conversation which occurred some time in the latter part of 1897 between the plaintiff, as he alleged and the Lawtons; that they all went on and took as little money out of the business as they could get along with, and that they did build up the business as best they could until the fall of 1900 when they concluded that they would incorporate it.

Q. Now state whether or not he paid or represented to you that he had paid anything for his interest in the partnership."

Objected to by plaintiff's counsel as immaterial and irrelevant.

Objection overruled and exception noted for plaintiff.

" A. I understand from Lem S. Brock that there had not been anything paid by any of these people; that they had taken as little out of the business as they could and in that way built it up for the purpose of putting it into a corporation.

Q. What we wish to get at is, what, as you viewed the case then or understood the case then, was necessary to be done to accomplish the plaintiff's object?"

Objected to by plaintiff's counsel as incompetent, irrelevant and immaterial.

The Court: My theory of it is that it is necessary to show the necessary steps in the litigation, if litigation ensued and was pursued, to show what work might have to be done by these gentlemen under the circumstances, and it would be perfectly competent for the other side to bring out that there was a possibility that all of that litigation might not be necessary.

The objection is overruled and exception noted for plaintiff.

Certificate and judgment for defendants for $ 848.08. Plaintiff appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions, and portions of the charge quoted in the opinion of the Superior Court.

J. McF. Carpenter, of Carpenter & Chalfant, for appellant, cited: Cullmans v. Lindsay, 114 Pa. 166; Spencer v. Colt, 89 Pa. 314; McKnight v. Newell, 207 Pa. 562; Graham v. Steiren, 44 Pa. 99.

John C. Bane, with him Thomson & Thomson, for appellees, cited: Barney v. Fuller, 133 N.Y. 605 (30 N.E. 1007); Glessner v. Patterson, 164 Pa. 244; Rodgers v. Stophel, 32 Pa. 111; Balsbaugh v. Frazer, 19 Pa. 95.

Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.

OPINION

HENDERSON, J.

The defendants were employed by the plaintiff as attorneys at law to recover by " legal process or settlement" certain shares of stock or the value thereof of a corporation called Mortgage Banking Company. One of the defendants, C. C Brock, was first retained and afterward the other defendant was employed on an arrangement between the plaintiff and C. C. Brock. As the result of a somewhat protracted litigation the plaintiff recovered from the Mortgage Banking Company $ 18,779.75. Three thousand dollars of this amount were paid directly to the plaintiff by the defendant in that litigation and the remainder was paid to the defendants who subsequently paid to the plaintiff $ 8,139.87, the balance being claimed as compensation for services. The plaintiff alleged that when he retained C. C. Brock in the case they agreed that the compensation to be paid should be twenty per cent of the amount recovered, excluding the value of thirty shares of the stock of the company which the plaintiff alleged were admitted to be his. The defendants claimed, on the other hand, that the agreement between the plaintiff and the defendant, Brock, was that the compensation should be one-half of the amount recovered less the value of twenty-five shares of the capital stock of the company and as the amount paid to the plaintiff by the defendants was in excess of one-half of the sum received by them they presented a set-off or counterclaim for $ 675.15, the amount paid in excess of that to which the plaintiff was entitled, if the contract was as claimed by the defendants. No agreement for compensation was made by Mr. Iams with the plaintiff directly. He claims through the agreement set up by C. C. Brock which, as shown by the evidence introduced for the defense, was communicated to him by the latter. The present action was brought to recover the amount...