Cooper & Keys v. Bell

• Decision Date: 21 February 1913
• Citation: 153 S.W. 844,127 Tenn. 142
• Parties: COOPER & KEYS v. BELL.
• Court: Tennessee Supreme Court

153 S.W. 844

127 Tenn. 142

COOPER & KEYS v. BELL.

Supreme Court of Tennessee.

February 21, 1913

Appeal from Chancery Court, Cumberland County; A. H. Roberts Chancellor.

Bill by Cooper & Keys against L. Harrod Bell. Decree for complainants, and defendant appeals. Reversed and remanded.

L. D Hill, of Sparta, Frank McElwee, of Rockwood, and George W Cline, of Crossville, for appellant.

Dorton & Burnett and E. G. Tollett, all of Crossville, for appellees.

BUCHANAN J.

It is only necessary to consider one of the assignments of error in order to dispose of this case, and that one is the fourth, to wit:

"There is no evidence in the record to support the finding of the jury on the fourth issue, and the chancellor erred in not setting it aside and granting a new trial."

The fourth issue was:

"Did the relation of attorney and client exist between the complainants, Cooper & Keys, and the defendant L. Harrod Bell at the date of the alleged contract set out in complainants' bill."

This issue ought never to have been submitted to the jury. It was not an issue of fact in the cause. The complainants' original bill showed the fact to be that the relation of attorney and client did exist between complainants, the attorneys, and defendant, the client, at the very time of the alleged making of the contract set out and sued on in that bill. The same allegations of facts are also in complainants' amended and supplemental bill. Each of these bills was sworn to, and, this being true, the court could not hear complainants in the same cause dispute by their evidence the truth of facts solemnly averred in their bills. In other words, it did not lie in complainants' mouths to aver the truth of these facts in their bills and dispute the truth thereof by their evidence; they were concluded by the averments in their bills. And, furthermore, the relationship averred by the bills to exist at the time of the making of the contract sued on was admitted by the defendant's answers, not in so many words, but so clearly as to have precluded defendant's by his proof from denying the fact. Therefore proof on either side was unnecessary as to that fact, and it was not in issue. See Gibson's Suits in Chy. § 455, where that author says:

"In strictness, any fact alleged by one side and admitted by the other in their respective pleadings is not in issue and need not be proved, whether the admission be express or constructive." On the same point, see Wood v. Zeigler, 99 Tenn. 517, 42 S.W. 447.

But this point was overlooked by the learned chancellor, who permitted this fourth issue to be made up and submitted to the jury, and admitted evidence on behalf of the complainants to the effect that, at the time the contract sued on was made, the relationship of attorney and client did not exist between them and the defendant; and thereupon the jury, by its verdict, found that at such time the relationship did not exist. Yet all the while, when the issue was made up when the complainants testified, and when the jury rendered its verdict, there were solemn averments in each of the bills of complainants clearly to the effect that the truth was exactly contrary to the verdict.

It matters not who tendered issue No. 4. The fact that it was submitted to the jury makes it an error of the court; for it is clear that it was not a proper issue, and the duty was upon the chancellor to see that proper and material issues, and only such, be submitted to the jury. Section 6285, Shannon's Code; Burton v. Farmers' Association, 104 Tenn. 416, 58 S.W. 230, and authorities cited. See, also, McElya v. Hill, 105 Tenn. 319, 59 S.W. 1025, Crisman v. McMurray, 107 Tenn. 469, 64 S.W. 711, and Pile v. Carpenter, 118 Tenn. 288, 99 S.W. 360.

The present case was a suit by Cooper and Keys, as partners in the practice of law, against defendant, Bell, based upon an alleged contract by which complainants claim $2,500 as a fee for professional services rendered Bell. These services, as disclosed by the bill, came about in this way:

Bell was defendant in a divorce suit in the circuit court of Cumberland county, and employed complainants to assist Judge G. B. Murray in the defense thereof; and, so associated, complainants and Judge Murray, as Bell's attorneys, filed for him an answer and cross-bill by way of defense to the divorce bill. Upon trial Bell was cast in that suit, and decree went against him, dismissing his cross-bill and requiring him to pay Mary C. Bell, his wife, $25 per month as alimony during her natural life, and she was granted a divorce from bed and board until the further order of the court; and the decree fixed a lien on certain lands of defendant, and so incumbered the same that Bell could not defeat payment of the alimony by sale or the incumbrance of the land, but provided that:

"Upon proper application being made by the defendant in this cause, he will be permitted to sell and dispose of a sufficient quantity or part of said real estate from which the sum of $5,000 may be realized; or he may furnish the said sum of $5,000, which sum will be loaned under the orders of the court, and in a manner satisfactory to the complainant, at the rate of 6 per cent. per annum interest, which said interest shall be collected monthly, and the same applied in payment of alimony aforesaid."

The cause was retained in court for the enforcement of the decree, and the costs adjudged against Bell.

The bill shows that Bell appealed from the decree of the circuit court to the Court of Civil Appeals, and, after his appeal had been perfected and the transcript filed in such court, that Bell discharged Judge Murray and made with the complainants the contract sued on in the present cause, by which they say Bell agreed to pay complainants, for services already rendered by them, and those thereafter to be rendered in the divorce suit, one-half of whatever reduction they might secure on the $5,000 which Bell was required to pay into court in order to have the lien discharged from his land, and that Bell also agreed to pay them $100 for expenses; and complainants say that, acting on that contract, they prepared and filed assignments of error and a brief in the Court of Civil Appeals, and there tried the cause, one member of the firm making two trips to Nashville to attend the court; that by the decree of the Court of Civil Appeals the judgment of the circuit court was reversed, and the original bill for divorce by Mary C. Bell dismissed, and the defendant, Bell, was granted an absolute divorce upon his cross-bill; that Mary C. Bell prosecuted her petition for certiorari from the judgment of the Court of Civil Appeals, but the same was dismissed; and so the divorce suit was finally terminated in favor of defendant, Bell.

And so complainants say in their bill that, by the terms of the contract, they became entitled to the sum of...