C. H. Albers Commission Company v. Milliken
| Decision Date | 02 June 1914 |
| Citation | 167 S.W. 1056,183 Mo.App. 662 |
| Parties | C. H. ALBERS COMMISSION COMPANY, Appellant, v. JOHN T. MILLIKEN et al., Respondents |
| Court | Missouri Court of Appeals |
Argued and Submitted May 8, 1914.
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
Barclay Fauntleroy, Cullen & Orthwein, for appellant.
(1) No counsel fees are recoverable by Spencer and Milliken because the restraining order did not enjoin them, but only enjoined other defendants. Holloway v. Holloway, 103 Mo. 274; Buford v. Packet Co., 3 Mo.App. 172; Albers Co v. Spencer, 236 Mo. 631. The injunction imposed on the grain purchasers (against receiving the "margins") was immaterial, harmless and without damage, because, as the Bank and the Exchange were enjoined from paying those funds no injury could be occasioned by the particular order (as to the grain purchasers) not to receive those funds. Only actual and proximate results of the restraining order can be assessed as damages thereof in favor of any one; and the purchasers made no motion for damages. Brown v. Baldwin, 121 Mo. 136; Bircher v. Parker, 40 Mo. 118; Holloway v. Holloway, 103 Mo. 274. Even if they had been enjoined, it was as several and distinct defendants; and hence they could not claim joint damages for their individual demands. Leisse v. Railroad, 2 Mo.App. 117. (2) The circuit court erred in finding for defendants for attorneys' fees, because no sums of money for such fees were "paid out or expended" by defendants as alleged in said motion for damages. A mere liability unpaid does not support an allegation of payment thereof. Muth v. Railroad, 87 Mo.App. 422; Stanley v. Railroad, 112 Mo.App. 601; Ward v. Haws, 5 Minn. 440; Pritchet v. Boevy, 1 Crompt. & M. 775; Jones v. Lewis, 9 Dowl. 143; Prader v. Grimm, 28 Cal. 11; McLaughlin v. Railroad, 113 Cal. 590; Gammon v. Havelock, 40 Ill.App. 268. There is no evidence that these fees were ever paid; but the law requires such proof before recovery on such allegations. The status when suit was brought could not even be changed so as to allow such a recovery on a later payment had it been made, although that is not even pretended. Freimuth v. Rupp, 8 Mo.App. 568; Brown v. Shock, 27 Mo.App. 351; Werth v. City, 22 Mo.App. 17. (3) The circuit court erred in finding for defendants for $ 3500 attorneys' fees, because the undisputed testimony shows that on June 3, 1904 (after the order entered to dissolve the injunction), the attorneys rendered an account to Spencer and Milliken for general services, including all proceedings (besides those for dissolution) and other cases besides this, which account was mutually accepted, and became thereby an account stated, in which the services for dissolution are not separated from other services in those causes, and said account stated merges the prior items and creates a new liability wherein the injunction services are not susceptible of severance. Powell v. Railroad, 65 Mo. 658; Mitchell v. Hawley, 79 Cal. 303; Lambert v. Alcorn, 144 Ill. 329; Alexander v. Colcord, 85 Ill. 323; 2 High Inj. (4 Ed.), sec. 1686; McCormack v. Sawyer, 104 Mo. 36; Wiggins v. Burkham, 10 Wall. 129; Kent v. Higleyman, 17 Mo.App. 9; Brown v. Kimmel, 67 Mo. 430. The account stated merges the previous dealings. "It is not necessary to prove the items of the account; for the action" (i e., on an account stated) "is founded not upon these but upon the defendant's consent to the balance ascertained." 2 Greenl. Evid., sec. 217; Powell v. Railroad, 65 Mo. 661. No liability on quantum meruit remained after the account was stated. Mitchell v. Hawley, 79 Cal. 303; Davis v. Brown, 67 Mo. 313; Mitchell v. Hawley, 79 Cal. 303; Railroad v. Kimmel, 58 Mo. 85; Yeates v. Ballentine, 56 Mo. 531; Mackey v. Hyatt, 42 Mo.App. 443; O'Brien v. Mayer, 23 Mo.App. 648. One may not recover on quantum meruit by proof of an agreed contract, nor vice versa in Missouri, as is attempted in this case by the testimony of "reasonable value" in the face of testimony of an account stated. O'Brien v. Mayer, 23 Mo.App. 648; Davis v. Brown, 67 Mo. 313; Yeates v. Ballentine, 56 Mo. 53; Eyerman v. Assn., 61 Mo. Mo. 489. (4) The circuit court erred in assessing said attorneys' fees because they were never paid, as alleged, and no liability therefor exists except as merged in a new contract, inseparably mingling other items for which plaintiff is not liable on this motion. Corder v. Martin, 17 Mo. 41; Dorris v. Carter, 67 Mo. 544; Konta v. Exchange, 150 Mo.App. 617. (5) The circuit court erred in assessing attorneys' fees in favor of defendants, because the burden was on the latter to prove that the services for which the fees are claimed arose from the injunction proceedings, and not from other services in the cause. Banking Co. v. Monarch Co., 68 Mo.App. 603; Quinn v. Silka (Colo.), 76 P. 552; Bank v. Hackett, 89 N.W. 412; Albers Co. v. Spencer, 236 Mo. 634; Uhrig v. City, 47 Mo. 529. Here the "reasonable value" of the services (on that phase of this cause), which was the only testimony given, is no evidence of liability of Spencer and Milliken to their attorneys concerning the injunction, because whether that value may or may not be the proper part to apportion thereto has been made immaterial by the acts of said clients and attorneys who have agreed (since the injunction was dissolved) upon a lump sum ($ 6438.80) for this and other services. The want of testimony is fatal to the finding on that point. Anderson v. Anderson, 55 Mo.App. 268; Alaska Co. v. Hirsch, 47 P. 124; Albers Co. v. Spencer, 236 Mo. 634. (6) The circuit court erred in finding for defendants for attorneys' fees because the injunction matters were not severed in the agreed account from general services in the causes; and, where those circumstances exist, such merger precludes identification of liability, and does not discharge the burden of proof. That rule applies in many forms to many phases of the law of evidence. Edgar v. Salisbury, 17 Mo. 271; O'Connor v. Railroad, 111 Mo. 194; Warner v. Railroad, 178 Mo. 134; Albers Co. v. Spencer, 236 Mo. 634; Wilson v. Haecker, 85 Ill. 349; Moriarty v. Galt, 125 Ill. 417. (7) The assessment of attorney's fees, in favor of Spencer and Milliken, was erroneous; because, after clients and their attorneys have created an entire debt or demand, and evidenced it as here by an account stated, it would be contrary to established principles of law to allow the clients to split up the adjusted entire demand (for $ 6438.80) and assert an unidentified part of it as damages sustained on account of minor transactions merged in the general balance, when their attorneys cannot now assert any liability against the clients because of the settlement and account stated, including other items mingled without identification. Moriarty v. Galt, 125 Ill. 417; Mackey v. Hyatt, 42 Mo.App. 443; Railroad v. Kimmel, 58 Mo. 85. (8) No action could now be maintained by defendants' attorneys against de-Jendants for their services in obtaining a dissolution of the injunction in this cause, because they have made those services an indistinguishable part of a larger claim including other matters. Lumber Co. v. Audrain Soc., 59 Mo.App. 24; Wagner v. Jacoby, 26 Mo. 532; Uhrig v. City, 47 Mo. 529; Nixon v. Biloxi, 76 Miss. 810; Wilson v. Weber, 3 Ill.App. 125. (9) The bonds secured the obligees against damages occasioned by the restraining orders; but a mere liability for costs or fees which have not yet been paid do not constitute more than nominal damages, if any damages, under the Missouri decisions, in view of the facts here in evidence showing no liability remaining for the injunction services, apart from the general case and other cases included in the account stated. Corder v. Martin, 17 Mo. 41; Freimuth v. Rupp, 8 Mo.App. 568; Dorris v. Carter, 67 Mo. 544. (10) The release executed to plaintiff by one of the obligees in the bond is a bar to recovery by any other obligee, including the moving defendants in this motion. Chicago Co. v. Bryan, 195 Mo. 574; Churchill v. Lammers, 60 Mo.App. 244; Hubbard v. Railroad, 173 Mo. 249; Butler v. Boynton, 117 Mo.App. 465; Ryan v. Riddle, 78 Mo. 521; Ellis v. Railroad, 130 Mo.App. 225. Separate assessments of damages are allowed for each defendant, by statute, but that does not affect or abrogate the terms of the injunction bond which create an obligation to all of the obligees, anyone of whom releasing prevents suit or judgment upon the bond in the right of all. Hubbard v. Railroad, 173 Mo. 249; Chicago Co. v. Bryan, 195 Mo. 574; Ryan v. Riddle, 78 Mo. 521; Dewey v. Carey, 60 Mo. 224; Robbins v. Ayres, 10 Mo. 538; Rainey, Smizer, 28 Mo. 311; Muldrow v. Railroad, 62 Mo.App. 431.
Judson, Green & Henry for respondents.
(1) The three propositions grouped under number "I" of appellant's "Points and Authorities" are not supported by any evidence and are based upon a total misconception of the record. Furthermore, the Supreme Court on the former appeal, has passed adversely upon each and every contention here presented. Albers v. Spencer, 236 Mo. 608. (2) The law does not require that parties litigant should have actually paid their counsel fees before they can have the value thereof assessed as damages on an injunction bond. It is sufficient to sustain such an assessment that the defendants are legally liable for the payment of such fees, and it is unnecessary to show that they have, in fact, been paid. Holthaus v. Hart, 9 Mo.App. 1; State ex rel. v. Gage, 52 Mo.App. 472; Swan v. Timmons, 81 Ind. 943; May v. Bank, 5 Ky. Law 691. (3) The proposition stated by appellant under point 10 was presented and argued to the Supreme Court on the former appeal and was ruled adversely to appellant (see 236 Mo., pp. 642, 643 and 644). If...
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