Carter v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 03 May 1909
• Parties: LUCIEN E. CARTER, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

119 S.W. 35

136 Mo.App. 719

LUCIEN E. CARTER, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 3, 1909

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

Culver & Phillip for appellant.

(1) If Mrs. Landers accepted the promise of defendant to pay her $ 1,100 in settlement of her case, that constituted an accord and satisfaction of her claim, without the performance of the promise. Railway v. Harriet, 15 S.W. 556; 2 Chitty Cont. (11 Am. Ed.), 1124; Bennett v. Hill, 14 R. I 322; Smith v. Elrod, 24 So. 994; Goodrich v Hanley, 29 Conn. 620; Jennings v. Ft. Worth, 26 S.W. 927; Mary v. Allen, 39 Iowa 235; Whitney v. Cook, 53 Miss. 559; Woodward v. Miles, 24 N.H. 289; Christie v. Craig, 20 Pa. St. 430; Palmer v. Yager, 20 Wis. 297; Morehouse v. Bank, 98 N.Y. 508; Railway v. Clem, 80 Ga. 534; 1 Cyc. 336-338, cases collated. (2) And if plaintiff induced defendant to become bound by its promise to pay $ 1,100 by representing that he would charge no fee, he is now estopped to claim one, even though he afterwards notified defendant that he intended to claim a fee before it paid the $ 1,100. (3) Whether Mrs. Landers accepted the promise of defendant to pay her $ 1,100 in satisfaction of her original cause of action, was a question of intent which must be decided by the jury from the facts and circumstances in evidence. Cases supra; Hart v. Boller, 15 Serg. & Rawle 162; Railway v. Harriett, 15 S.W. 556; Woodward v. Miles, 24 N.H. 298; Whitney v. Cook, 53 Miss. 599; Babcock v. Hawkins, 23 Vt. 561. (4) There was ample evidence to show plaintiff agreed to render his services gratuitously. If so, there was no consideration for Mrs. Landers' contract made after all the services were performed, to pay him a fee. Session Laws 1903, p. 46. (5) There was evidence to show that plaintiff induced Mrs. Landers to make the contract for a fee, not with any intent that she should be bound to pay anything, but for the purpose of "using it as a bluff against the railroad company" and extorting money from it.

Brown & Dolman for respondent.

(1) Both at the trial and in its brief the defendant's theory seems to be that if it caught the attorneys on the fly, so to speak, by settling or promising to settle the Landers case before the written contract for fees was made and notice thereof given then the plaintiff cannot recover. Under the act of 1901, by which the attorneys' lien is created (Laws of 1901, p. 46), the settlement has nothing whatever to do with the case. Fischer-Hansen v. Railroad, 173 N.Y. 492, 500; Peri v. Railroad, 152 N.Y. 521; Coster v. Ferry Co., 5 Civ. Pro. Rep. 146, affirmed without opinion in 98 N.Y. 660; Goodrich v. McDonald, 112 N.Y. 157; Taylor v. Transit Co., 198 Mo. 715; Curtis v. Railway, 118 Mo.App. 341, 359; Wait v. Railroad, 204 Mo. 500; Yonge v. Transit Co., 109 Mo.App. 235; Keeler v. Keeler, 51 Hun 505; O'Connor v. Transit Co., 198 Mo. 642; Young v. Renshaw, 102 Mo.App. 173. (2) The defendant's agent, Judge Spencer, testified that he told Mrs. Landers that he would fight her attorneys and protect her against their claims. This was a recognition by defendant of its additional liability to pay the fees of the attorneys, and amounted to a promise to pay them. Boyd v. Mercantile Co., ___ Mo.App. ___, decided at this term, and cases cited. (3) Nor is the statement that the contract for fees was procured by fraud, founded upon anything well pleaded or suggested by the evidence. Fraud cannot be pleaded by invective, but the facts constituting it must be stated. Van Weel v. Winston, 115 U.S. 228; Aniber v. Choteau, 107 U.S. 291; St. Louis, etc., v. Johnston, 133 U.S. 577; Knox County v. Harshman, 133 U.S. 155; Kent v. Canal Co., 144 U.S. 75.

OPINION

BROADDUS, P. J.

This is a suit to enforce the collection of an attorney's fee under the Act of 1901 providing for a lien for the services of attorneys and counselors at law. The plaintiff, an attorney, brought suit for Lucinda Landers against defendant to recover damages for the death of her husband, Ebenezar Landers, who was killed July 11, 1907, by one of defendant's engines. The widow settled her suit for $ 1,100.

The plaintiff in his petition alleges that Mrs. Landers made a contract with him by which he was to receive for his services a sum equal to one half of the amount to be recovered by judgment or compromise, and this suit is to enforce his statutory lien under said contract.

The defendant answered, denying that plaintiff had any such contract of employment, and alleged that the plaintiff represented to the defendant that he and Ebenezar Landers had been Grand Army Comrades and because of that fact he would not charge the widow anything for his services; and, relying upon that representation, defendant settled with Mrs. Landers by its promise to pay her $ 1,100; that, learning such settlement had been made, plaintiff fraudulently induced Mrs. Landers to execute a contract by which he was to receive for his services a sum equal to one half of the amount she recovered on her claim by judgment or compromise, and that said contract was obtained by plaintiff with the fraudulent intent of extorting from defendant the amount sued for in the case.

The uncontradicted evidence in the case establishes the following facts, viz., that plaintiff at the instance of Mrs. Landers brought the suit mentioned and afterwards brought into the case the services of Dolman & Brown, a firm of lawyers engaged in their profession at St. Joseph where the suit was instituted; that prior to plaintiff's appearance in the controversy John F. Tyler had been retained by Mrs. Landers to bring her suit, the compensation for whose services was to be one-third of the amount she might succeed in recovering; that plaintiff induced Mrs. Landers to revoke her authority to Tyler to bring the suit and to employ him for that purpose.

A short time prior to the 19th day of July, 1907, Mrs. Landers through the agency of a Mr. Vest compromised her suit with defendant for the agreed sum of $ 1,100, and no money was paid at the time, but it was arranged that she would in a few days go to the office of the general solicitor of the defendant, Judge Spencer, and receive a voucher for the sum mentioned. On the 19th of July, Mrs. Landers on her way to Judge Spencer's office called upon plaintiff at his office and told him of the arrangement she had made through Mr. Vest for a compromise of her suit. The plaintiff then prepared a writing whereby Mrs. Landers agreed to pay him the sum of $ 550 for his services as her attorney, which writing she signed. On the back of this writing, Dolman & Brown assigned to plaintiff all their interest in the fee. A copy of this contract was served upon Judge Spencer within a short time after its execution, after which Mrs. Landers appeared and received from the defendant a voucher for $ 1,100 and consummated the settlement made previously by her agent, Vest.

The defendant's evidence tended to show that when plaintiff undertook Mrs. Landers's case he led her to believe that he would not charge her for his services because the deceased husband and he had been members of the same lodge of the Grand Army of the Republic. But plaintiff's evidence tends to show that such was not the case although at the time of the employment nothing...