Cheshire v. Des Moines City Ry. Co.

• Decision Date: 18 November 1911
• Citation: 153 Iowa 88,133 N.W. 324
• Parties: CHESHIRE v. DES MOINES CITY RY. CO. ET AL.
• Court: Iowa Supreme Court

153 Iowa 88

133 N.W. 324

CHESHIRE

v.DES MOINES CITY RY. CO. ET AL.

Supreme Court of Iowa.

Nov. 18, 1911.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action to recover on lien for attorney's fee resulted in judgment as prayed. The defendants appeal. Affirmed.Guernsey, Parker & Miller, for appellants.

Thos. A. Cheshire, pro se.

LADD, J.

The plaintiff, an attorney at law, was employed by Edith Lowe, October 2, 1909, to bring and prosecute a suit against the Des Moines City Railway Company and the Interurban Railway Company, to recover damages sustained by the first party in a collision on the street railway company bridge over the Des Moines river, in which collision the first party received personal injuries.

“The party of the first part hereby agrees to pay to the party of the second part a sum equal to an undivided one-half (1/2) of whatever may be received of said railway companies, or either of them, as damages on account of said injuries. The party of the second part hereby agrees to bring and prosecutea suit with reasonable diligence against said railway companies, in the name of the party of the first part, for said damages, as first party's attorney. It is mutually understood and agreed, by and between the parties hereto, that, should nothing be recovered by way of suit or settlement, then the party of the second part is to receive nothing for his services as attorney for party of the first part.”

Suit was begun in pursuance of this contract by plaintiff causing original notice to be served on defendants October 7, 1909, claiming damages for his client in the sum of $10,000, and at the same time notifying them that he claimed “an attorney's lien in the sum of $5,000 on any money in your hands due the above-named plaintiff, Edith Lowe, on account of personal injuries sustained by her for which the above-entitled cause is brought; same being for professional services rendered and to be rendered the plaintiff in said cause.” On the 22d of October, plaintiff prepared and filed the petition in the cause, but two days prior thereto his client, without his knowledge, had settled with defendants for $400, and signed a dismissal of the cause, which was filed November 10th following. The agreement signed by her recited the consideration received was “by way of compromise and settlement of the claims hereinafter referred to,” that she released the company from “all claims and demands against it, and especially from all liability to her” for loss or damages by reason of the accident (describing it), and from “all claims set up” by her in the suit, and acknowledged “receipt of the payment of the above amount, paid as aforesaid by way of settlement and compromise of said claim.” On this state of facts, the plaintiff demanded and was awarded judgment against defendants for a sum equal to one-half that paid his client. The defendants have appealed therefrom.

The defendants contend: That, (1) as the notice of attorney's lien served did not advise them of any written contract of employment, they had a right to assume that reasonable compensation would be claimed; (2) that, as plaintiff was to be paid a share of the damages only, and what Edith Lowe received was in compromise of litigation, he was not entitled to recover; and, (3) as plaintiff undertook to “bring and prosecute” the suit, and in fact only brought it, he had not earned the contract price, and was entitled to reasonable compensation only.

[1][2] 1. It was not incumbent on the attorney in serving defendants with notice of his claim of the attorney's lien to state therein the details of his contract of employment. The lien is for “the balance of compensation,” whether owing by...