Conkling v. Austin
| Decision Date | 03 April 1905 |
| Citation | 86 S.W. 911,111 Mo.App. 292 |
| Parties | VIRGIL CONKLING et al., Respondents, v. F. F. AUSTIN et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Carroll Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
James McCann and R. E. Ball for appellants.
(1) This is an action in equity, seeking to enforce an attorney's lien on funds. Such an action will not lie. Fromme v. Guaranty Co., 78 N.Y.S. 895; Young v Renshaw, 102 Mo.App. 173. (2) No attorney, asserting an equitable lien, should be heard or permitted to say, as a basis of his claim, that contracts and pleadings, which he drew, were filled with falsehoods. To so permit would violate the maxim of equity which is time honored, if not always honored, that, "he who comes into a court of equity and invokes its powers for his relief, should come with clean hands." The motion to strike out parts of the reply should have been sustained. Fisher-Hanson v Railroad, 173 N.Y. 492; Tompkins v. Railroad, 72 S.W. 116. (3) The lien of an attorney, if he has any, is limited solely to the subject-matter of the suit. In this case, and under plaintiffs' contract of May 29th, it could not extend beyond the fifteen hundred dollars sued for by plaintiffs in case of Austin v. Dawson's executors. One-fourth of this plaintiffs received, and the other fourth they refused to accept, and it was tendered into court for them. The only other suit was the specific performance action brought by Peltier, and for their compensation in that action they had a special contract for the payment to them of one thousand dollars, on which suit is now brought. Exhibition Co. v. Crane, 167 N.Y. 505; Young v Howell, 64 A.D. 246. (4) On the merits, and in view of the proof, it cannot be disputed with truth that Austin's obtaining the funds, which he did obtain, was by virtue of his agreement with Peltier to divide the profits of a resale, and it cannot be disputed with truth that the commission, the value of the agency mentioned in plaintiff's contract on which they sue, was agreed upon between all parties as being fifteen hundred dollars, and that Austin having paid one-fourth of this commission, and having offered to pay and paid into court another fourth, has discharged his full obligation under the terms of his contract of May 29, 1902.
Lozier & Morris and Wm. J. Allen for respondents.
(1) How much does Austin owe plaintiffs on their contingent fee under their contract of May 29? Is it $ 375 or $ 2,235?
This must be determined by a just and equitable construction of the contract in question.
(2) The prime rule for the construction of contracts is that the intent of the parties as disclosed by their language be given effect. Redheffer v. Leathe, 15 Mo.App. 12; Ellis v. Harrison, 104 Mo. 270; Hanna v. Land Co., 126 Mo. 1; Knapp v. Knapp & Co., 127 Mo. 53.
(3) If the intention can be ascertained by the acts and conduct of the parties, such interpretation should prevail. Brewing Co. v. Water Co., 34 Mo.App. 49; Rose v. Carbonating Co., 60 Mo.App. 28; Drug Co. v. Sanders, 70 Mo.App. 221; Newberry v. Durand, 87 Mo.App. 290; Laing v. Holmes, 93 Mo.App. 231; Ireland v. Spickard, 95 Mo.App. 53; Ellis v. Harrison, 104 Mo. 270; Depot Co. v. Railway, 113 Mo. 225; Carter v. Foster, 145 Mo. 383.
(4) An attorney's lien upon a fund in the hands of a third party is properly enforcible by a suit in equity,
The enforcement of liens is a distinct subject of equity jurisdiction. Bank v. Packing Co., 138 Mo. 92; Burnham Munger & Co. v. Smith, 82 Mo.App. 44.
Our attorney's lien act is borrowed entirely from the New York code. Consequently a late New York decision upon this identical point of equity jurisdiction is forcefully in point. Fisher-Hansen v. Railroad, 173 N.Y. 492, 66 N.E. 395.
(5) Equity has juridiction to enforce statutory liens when the statute itself provides no method of enforcement. Gilchrist v. Railway (C.C.), 58 F. 708; Railway Co. v. Fackney, 78 Ills. 116; Gibbons v. Hamilton, 33 How. Prac. (N. Y.) 83; Fillmore v. Wells, 10 Colo. 228, 15 P. 343.
(6) The lien of an attorney attaches to any property which is the result or fruitage of his services. New York Code, sec. 66; Acts of 1901 (Mo.), p. 46; Canary v. Russell, 31 N.Y.S. 291, 10 Misc. (N. Y.) 597, 24 Civ. Pro. R. 109; In re Wilson, 12 F. 235; Morrison v. Ponder, 45 Ga. 167; Porter v. Hanson, 36 Ark. 591; Bank v. Davidson, 42 P. 687; Fisher-Hansen v. Railroad, 173 N.Y. 492, 66 N.E. 395.
The plaintiffs are attorneys at law and brought this action in equity to enforce a lien in their favor for the sum of $ 2235, against a fund of $ 4470, deposited by the defendant Austin in the banking house of the defendant Wilcoxson & Co. The decree of the circuit court was in favor of the plaintiffs.
It appears that Richard Dawson, of Maysville, Kentucky, owned 1240 acres of land in Carroll county in this state and that Dawson died in the year 1900, leaving a will which contained, among other provisions, the following clause 8, relating to defendant Austin, viz: Defendant Austin had a claim against Dawson's estate on a lost note for $ 5,000.
It seems that the executors did not recognize any obligation whereby they were bound to engage the services of Austin in the sale of the real estate, nor were they inclined to admit the validity of his claim on account of the lost note. In this situation of affairs Austin engaged the plaintiffs as his attorneys whereby they were to "collect and adjust or to institute and conduct proceedings against the estate of Richard Dawson, deceased, on account of a note of $ 5,000 and also the matters mentioned in clause 8, above set out, of the will aforesaid, as well as any and all other claims and demand which he, Austin, may have against the estate of said Richard Dawson, deceased." For such services plaintiffs were to receive a contingent fee of "50 per cent of any and all sums that may be recovered on the above claims, whether by suit or compromise."
Under the advice and direction of plaintiffs, the defendant obtained from the executors such recognition of his authority to sell said lands as induced him to undertake to sell them upon the terms agreed between him and the executors, to-wit: thirty dollars per acre net to the executors, the defendant after defraying expenses to retain balance of all over that price as his compensation. Defendant, with the aid and assistance of G. J. Peltier, then sold the lands to one Fred Fisher. This sale to Fisher was made at forty dollars per acre, being ten dollars an acre more than the price for which he was authorized to sell it, aggregating a total sum of $ 12,400 more than such authorized price. Defendant reported the sale to the executors as made to Peltier. But the evidence discloses, beyond doubt, that Peltier was not the purchaser in fact and that he was only used as the medium through which the title was to be passed to Fisher.
It is however claimed by defendant that he actually sold the land to Peltier and so contracted with him on August 7th, and that the agreement was that Peltier should pay thirty dollars per acre and pay him $ 1500 as commission, and also one-half the profits which might be made by Peltier when he should sell to another. That Peltier sold the land to Fisher at $ 40 per acre, together with an adjoining 120 acres which he (Peltier) owned. And that under his agreement with Peltier he was entitled to one-half of his profit on the Dawson tract as well as the commission of $ 1500. That when Peltier paid him $ 750 of the commission he paid one-half thereof to plaintiffs; and that when Peltier paid him the remaining $ 750 he offered one-half thereof to plaintiffs in compliance with his contract with them, but that they refused to receive or accept it in that way--they claiming that they were entitled to one-half of what defendant got out of the transaction, less expenses, etc. It is apparent that the point to defendant's contention is to maintain that he only received $ 1500 commission in the sale of the land by the executors and that there was thereafter a resale by Peltier to Fisher in which the profit was made and that this profit was not covered by the contract with plaintiffs and therefore he does not owe them any part of it.
But the claim that there was in reality a sale to Peltier except as a mere conduit through which the title was passed to Fisher has no substantial support. The evidence leaves no room for doubt that defendant procured the sale to Peltier at $ 30 per acre and that the latter made the purchase at that price merely to transfer it to Fisher at $ 40 per acre, so as to conceal from the executors the extraordinary sum taken out as commission for the sale. The final written contract between Peltier and defendant for sale of the land was not signed until Peltier had closed his contract of sale to Fisher; and, indeed, the money paid by Fisher was used in payment to the executors, Peltier not having any money with which to make the purchase.
It is true, as above mentioned, that defendant and Peltier stated that defendant contracted the land to Peltier on August 7th between two and three weeks prior to the latter's sale to Fisher, but if that should be conceded, it was yet made to appear that at that time it was considered that a resale was virtually made at the advanced price. But aside from the mere assertion that the sale had been made to Peltier at that early date (August 7th) we find that defendant...
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