Crawford's Adm'r v. Ross

• Decision Date: 13 February 1945
• Citation: 299 Ky. 664,186 S.W.2d 797
• Parties: CRAWFORD'S ADM'R et al. v. ROSS.
• Court: Kentucky Court of Appeals

186 S.W.2d 797

299 Ky. 664

CRAWFORD'S ADM'R et al. v. ROSS.

Court of Appeals of Kentucky

February 13, 1945

Rehearing Denied May 1, 1945.

Appeal from Circuit Court, Pulaski County; Hon. J. S. Sandusky Judge.

Action by C. I. Ross against Kate S. Crawford on a contract for services by plaintiff as defendant's business agent. After defendant's death, the action was revived against Charles Adams, administrator of her estate, and another. From a judgment for plaintiff, defendants appeal.

Affirmed in part, and reversed in part.

B. J. Bethurum, of Somerset, for appellants.

Gladstone Wesley and W. R. Jones, both of Somerset, for appellee.

VAN SANT, Commissioner.

The appeal is from a judgment in the sum of $4,750 in favor of appellee, C. I. Ross, against appellants, in an action instituted by Ross, and based upon an oral contract between him and Mrs. Kate S. Crawford, entered into in the year 1925. The action was instituted against Mrs. Crawford September 1 1939. A demurrer was filed to the petition, but was not acted upon, nor was any answer filed until after the death of Mrs Crawford in September, 1942, more than three years after the commencement of the action. After her death, the action was revived against appellants, Charles Adams, administrator of her estate, and Malcomb Staples, who succeeded to the title to the real property under the laws of descent and by deed executed by the only other heir of Mrs. Crawford. Appellants by answer, denied the allegations of the petition, pleaded laches and the statute of limitations as bars to appellee's right to recover.

It is now contended: (1) The findings of the Master Commissioner and the judgment of the Court were excessive and flagrantly against the evidence; (2) the Court erred in giving judgment for certain services, because their performance was contrary to public policy; (3) recovery was permitted upon an implied contract, whereas the action was based upon an express contract; (4) the right of action was barred by the five year statute of limitation, KRS 413.120; (5) appellee's claim was barred by the doctrine of laches; and (6) the Court erred in sustaining the order of attachment.

Appellee introduced twenty-three witnesses whose testimony in the aggregate sustained his claim in every respect. He proved by these witnesses that he had entered into an oral contract with Mrs. Crawford in the year 1925, whereby he agreed to, and did, act for her as business adviser and manager. In pursuance of the contract, he looked after her real estate, consisting of farms, timber land, houses and lots; represented her before boards of equalization; collected rents; secured tenants; assisted her attorney by interviewing, conferring with, and procuring the attendance in court of, witnesses in various lawsuits, and advising with the attorney in Mrs. Crawford's place and stead. He made several trips out of the State to procure the attendance of witnesses upon the trial of four or five lawsuits in which Mrs. Crawford was interested; took the place of the litigant in assisting her attorney in the selection of jurors. In general, the evidence introduced by appellee shows that he acted as a very attentive and valuable business agent for her for a period of fourteen years.

The evidence for appellants contradicts appellee's evidence in a general way. It is insisted that appellants' evidence to the effect that no contract was made and Mr.

Ross did not expect any compensation for the services he rendered Mrs. Crawford is so conclusive as to have required the Chancellor to enter a judgment to that effect. In this connection, attention is called to a deposition introduced in evidence given by Mr. Ross in one of the will contest suits, wherein he stated that he had acted as business adviser and agent for Mr. Crawford in his lifetime, without any agreement for, or expectation of, compensation for such services. This testimony does not militate against the claim of Mr. Ross against Mrs. Crawford, who had a separate estate from that of her husband during his lifetime. Mr. Ross did not state in his deposition that he did not have a contract with, or expect pay from, Mrs. Crawford for his services to her, which constitute the sole basis of the claim sued on. Mrs. Crawford's separate estate was proved to have been worth between forty and fifty thousand dollars. In 1930 Mr. Crawford died, leaving an estate of approximately the same value, which he devised to his wife. The lawsuits hereinabove referred to were instituted by contestants of the will, and the litigation extended over a period of approximately eight years. Honorable Ben D. Smith, Judge R. C. Tartar, and Honorable Chris Tartar testified to the services rendered by appellee to Mrs. Crawford in defense of the lawsuits, and each credited Mr. Ross' activities with the success of the litigation. Mr. Smith estimated these services alone to be worth $2,500; Judge Tartar stated that in his opinion they were worth $5,000. But it is insisted that these services cannot be considered by the Court, because Mr. Ross' activity in this respect contravened public policy; that he was, in effect, practicing law without a license, and practicing law while serving as Circuit Clerk of the county in which the suits were pending, contrary to Section 110, Carroll's Kentucky Statutes, which reads: 'The governor, or a judge of the court of appeals or circuit court, or clerk or deputy clerk of any court, shall not practice law or render any service as an attorney or counsellor-at-law, in any of the courts of this Commonwealth, except in such cases as he may have been employed in previous to his election, or in cases in which he may be personally interested.'

We do not agree with this contention. The mere interviewing and procuring of witnesses to testify in favor of a litigant is a service which may be rendered by a layman, as well as an attorney; and where his compensation does not depend upon the outcome of the litigation, a contract to render such services does not contravene public policy; and, since it is not to be considered as practicing law, the rendition of such services does not contravene Section 110, supra. At the time appellee entered into the contract with Mrs. Crawford, he was not the Circuit Court clerk; and the mere fact that he afterwards became clerk did not...