Brown v. Reichman, 26003.
| Decision Date | 07 July 1942 |
| Docket Number | No. 26003.,26003. |
| Citation | 164 S.W.2d 201 |
| Parties | JAMES W. BROWN, (PLAINTIFF) RESPONDENT, v. EDWARD A. REICHMANN, (DEFENDANT) APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.
APPELLANTS MOTION OVERRULED, RESPONDENT'S MOTION SUSTAINED AND APPEAL DISMISSED.
David Langah, Herman Schachter and Edward K. Schwartz for appellant.
(1) Sec. 880, R.S. Mo. 1939; Rosenthal v. Windensohler, 115 A. 237, 91 S.W. 432; Tiller v. Abernathy, 37 Mo. 196; Mertin v. Barrett, 204 S.W. 410; Ellington v. Moore, 17 Mo. 424; C.B. Coles etc. Co. v. Blythe, 69 N.J.L. 203, 54 Atl. 240. (a) The contract sued on provided for and contemplated the performance by the plaintiff, a non-attorney, of services constituting practice of law and "law business" and was therefore invalid. Sec. 11692, R.S. Mo. 1929 et seq.; Curry v. Dahlberg, 110 S.W. (2d) 742; State ex rel. McKittrick v. C.S. Dudley & Co., 102 S.W. (2d) 895, 340 Mo. 352, cert. denied, 58 S.C. 12, 302 U.S. 693; Clark v. Austin, 101 S.W. (2d) 977, 340 Mo. 467; Liberty Mutual Ins. Co. v. Jones, 130 S.W. (2d) 945. (b) The contract sued on was champertous and therefore invalid and unenforceable. Taylor v. Perkins et al., 157 S.W. 122, 106 A.L.R. 1496; Merlaud v. Nat'l Met. Bank, 84 Fed. (2d) 238; Curry v. Dahlberg, supra, and cases there cited; 10 Am. Jur., sec. 2, p. 551; 11 C.J., p. 231. (c) The services testified to by plaintiff as having been performed by him embraced some which fall within the category of "Practice of Law." See cases under Point (a). (d) The plaintiff, an accountant, even though admitted to practice before the Treasury Department, as an "agent," is nevertheless restricted in the kind of services he may perform and is expressly prohibited from performing those services which constitute practice of law, and from advising his client as to the legal effect of any written instrument upon his federal taxes. Treasury Dept. Rules of Practice, Series 2 (f); 31 C.F.R. 10.2 (f); C.C.H. Fed. Adm. Proc., p. 77040; 13 C.J., pp. 736, 737, secs. 874, 875. (e) If in fact the services rendered by plaintiff were not under the contract sued on, plaintiff could not recover in this action founded upon a written contract of employment, as plaintiff could not sue on one contract and recover on another. Koons v. St. Louis Car Company, 203 Mo. 227; Diesel-Wemmer-Gilbert Corp. v. David Chalmers Tobacco Co., 104 S.W. (2d) 1029; Hoffman v. Mastin et al., 119 S.W. (2d) 1027.
Joseph Boxerman and Wm. H. Allen for respondent.
(1) (a) Kiel v. Osterwald, 33 S.W. (2d) 778; Brumley v. Thornberry, 226 S.W. 624; Walner v. Wade, 124 Mo. App. 496. It must appear from the record proper that a bill of exceptions was filed. The bill cannot prove itself. Walner v. Wade, 124 Mo. App. 496. (b) Also, in order that any matter of exception may be reviewable, it must appear from the record proper that a motion for a new trial was filed. Noble v. Brinson, 231 Mo. 640; Walner v. Wade, 124 Mo. App. 496; Rife v. Reynolds, 137 Mo. App. 290. Here appellant's purported abstract of the record nowhere shows the filing of a motion for new trial. Wright v. Metropolitan Life Ins. Co., 122 S.W. (2d) 375. (2) Sec. 1479, R.S. of Mo. 1939; Alexander v. Wade, 107 Mo. App. 321; Geopfert v. Page, 24 S.W. (2d) 699; Diener v. Star-Chronicle Publishing Co., 232 Mo. 416. (3) City of St. Louis v. Central Institute for the Deaf, 146 S.W. (2d) 790, 791; Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 789, 790, 142 S.W. (2d) 1055, 1056; Jeck v. O'Meara, 343 Mo. 559, 575, 122 S.W. (2d) 897. Appellant's assignment of error B 9, that the court erred in not directing a verdict for appellant, is not reviewable for lack of any showing that a bill of exceptions or a motion for new trial was filed. Kiel v. Osterwald, 33 S.W. (2d) 778; Noble v. Brinson, 231 Mo. 640; Arnold v. Iowa State Ins. Co., 44 S.W. (2d) 865. Appellant's assignment of error B 11 and 12 are mere generalities, not referable to any particular ruling or rulings below, and need not be further noticed. Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 789, 790, 142 S.W. (2d) 1055, 1056. (4) And no defense of illegality could be interposed to this action either upon the theory that the contract is champertous or the theory that respondent was illegally engaging in the practice of law. Since the action is one to recover upon a contract for services rendered in connection with a claim against the United States Government, neither the fact that respondent's compensation was contingent nor the fact that he agreed to pay the costs and expenses incident thereto, nor the fact that he agreed to employ counsel if that should become necessary, rendered the contract champertous. The doctrine of champerty has no application whatsoever to cases involving claims against the United States Government. Manning v. Sprague, 148 Mass. 18; Wardman v. Leopold, 85 F. (2d) 277; F.B. Vandegrift & Co. v. Lanyan Zinc Co., 87 Kan. 376, 124 Pac. 534; Maybin v. Raymond, Fed. Cas. No. 9338 (16 Fed. Cas., p. 1223), 15 National Bankruptcy Register 353, 4 Am. Law. T. Rep. (N.S.) 21; Manning v. Perkins, 85 Maine, 172, 26 Atl. 1015; Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 725; Helvering v. Ward, 79 Fed. (2d) 381; Title 5, Sec. 261, U.S.C.A.; Treasury Department Circular No. 230, entitled "Laws and Regulations Governing the Recognition of Agents, Attorneys and other Persons Representing Claimants before the Treasury Department and offices thereof;" DePass v. B. Harris Wool Co., 346 Mo. 1038, 144 S.W. (2d) 146; Bachman v. Lawson, 109 U.S. 659; R.W. Hart & Co. v. Harris, 183 Okla. 588, 83 Pac. (2d) 565. Our courts take judicial notice of the rules and regulations adopted by the Treasury Department. De Pass v. B. Harris Wool Co., supra. (5) While, for the reasons stated above, the matter is not here for review, it may be noted that there is no merit in the contention that appellant was entitled to adduce evidence to show that this written contract was subsequently abrogated or rescinded by an oral contract, without pleading this. It cannot be shown under a general denial. England v. Denhem, 93 Mo. App. 13; Harrison v. Missouri Pacific R. Co., 74 Mo. 364; Reggins v. Missouri River, Ft. S. & G.R. Co., 73 Mo. 598; Brown v. Weldon, 27 Mo. App. 251; Reynolds v. Reynolds, 45 Mo. App. 622. (6) And since the suit is upon a written contract, the execution of which was admitted by appellant, and appellant admitted receiving the checks for the refund of the taxes in double the amount sued for, and no valid defense was interposed, it was entirely proper to direct a verdict for respondent. Arthur Fels Bond & Mortgage Co. v. Pollock, 347 Mo. 853, 149 S.W. (2d) 356; Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W. (2d) 1148.
This is an action by plaintiff, an income tax counselor and auditor, to recover from defendant the amount allegedly due plaintiff, with interest, under a written contract whereby defendant employed plaintiff to present a claim against the United States Government for the refund of income taxes, penalties, and interest illegally collected from defendant for the years 1926 to 1931, inclusive and agreed to pay plaintiff for his services the sum of 50% of any and all amounts that might be recovered.
Plaintiff alleged in his petition that he had rendered the services required of him under the contract, and had recovered from the United States Government the sum of $3,550.56 that had been illegally collected from defendant by way of income taxes, penalties, and interest for the years 1926 to 1931, inclusive; that there was due him under the contract, as compensation for his services, 50% of such amount, or the sum of $1,775.28; but that defendant had failed and refused to pay him such amount.
Being unable to obtain service upon defendant, plaintiff proceeded by attachment upon the ground that defendant had concealed himself so that the ordinary process of law could not be served upon him. The attachment was sustained by the court, whereupon defendant answered by a general denial coupled with certain specific defenses, all of which were subsequently stricken out on plaintiff's motion.
Thereafter a trial was had upon the merits, at the conclusion of which the court peremptorily instructed the jury to return a verdict in plaintiff's favor for the principal sum of $1,775.28, together with interest at the rate of 6% per annum from February 13, 1939, the date of the institution of the action. Judgment was entered for plaintiff for the aggregate amount of $1,996.34, and defendant has appealed on the whole case, including the judgment sustaining the attachment.
Within ten days after the service of a copy of appellant's abstract upon him, respondent, in obedience to the provisions of Rule 33 of this Court, filed his written objections questioning the sufficiency of the abstract in certain respects, and asking that the appeal be dismissed. Upon the filing of such objections, appellant, instead of asking leave to amend his abstract, elected to stand upon the abstract as already prepared, and filed suggestions in opposition to respondent's objections and motion to dismiss. Thus the matter stood when the case was argued and submitted, with respondent's objections to the abstract and motion to dismiss both taken with the case. Some ten days after the argument and submission of the case, appellant for the first time asked leave to amend his abstract by incorporating a record entry showing that the bill of exceptions had been duly filed and made a part of the record in the case. Such motion is pending undetermined, and is likewise to be acted upon in connection with the disposition of the appeal.
The chief objections urged against the abstract are that it does not recite that the pleadings set out therein were ever filed in the case; that...
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