Creason v. Deatherage

• Citation: 30 S.W.2d 1,325 Mo. 661
• Decision Date: 11 June 1930
• Docket Number: 28130
• Parties: Goodwin Creason, Administering Surviving Partner of Partnership Firm of Deatherage & Creason, Appellant, v. W. N. Deatherage, Executor of Last Will of B.F. Deatherage, et al.; John T. Harding, David A. Murphy and Paul R. Stinson, Appellants
• Court: United States State Supreme Court of Missouri

30 S.W.2d 1

325 Mo. 661

Goodwin Creason, Administering Surviving Partner of Partnership Firm of Deatherage & Creason, Appellant, v. W. N. Deatherage, Executor of Last Will of B.F. Deatherage, et al.;

John T. Harding, David A. Murphy and Paul R. Stinson, Appellants

No. 28130

Supreme Court of Missouri

June 11, 1930

Rehearing Overruled Appril 7, 1930. Appellants' Motion to Transfer to Banc Over

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

Gossett Ellis, Dietrich & Tyler for Goodwin Creason, appellant administrator.

(1) The interest of Deatherage and Creason, in their partnership business was determined by their partnership contract. B. F. Deatherage could not appropriate fees earned in the Deatherage & Creason business to himself against the will and consent of his partner. Whatever he earned or received as compensation for professional services on said partnership business accrued and belonged to said partnership firm of Deatherage & Creason. 6 C. J. 754, sec. 334; Lawson on Contracts, 299. (2) Creason, a member of the partnership firm of Deatherage & Creason, was entitled to one-half of the firm fees in the Spiller cases, even if he had done no work therein or thereon. But the evidence shows he did a vast amount of work in said cases, and his rights, in equity, to half of the fees from said cases, were thereby strengthened. The trial court erred in disregarding this proposition of law and fact, both in sustaining the motion of defendant W. N. Deatherage, Executor, for a new trial, and in not rendering judgment for the plaintiff against defendants, Harding, Murphy and Stinson, as well as that rendered against defendant W. N. Deatherage, Executor. 6 C. J. 754, sec. 334; 30 Cyc. 451, 610; Henry v. Bassett, 75 Mo. 89; Miller v. Hale, 96 Mo.App. 430; 20 Am. & Eng. Ency. Law, 115; Brown v. Shackleford, 53 Mo. 122; Filbrun v. Ivers, 92 Mo. 388; Evans v. Gibson, 29 Mo. 223; Henry v. Bassett, 22 Mo.App. 667; Bennett v. Russell, 34 Mo. 524. (3) B. F. Deatherage could not legally accept additional compensation in said causes, even as a gift, and appropriate said additional fees to his own use to the exclusion of his partner, Goodwin Creason, without the knowledge and consent of said Creason. Lawson on Contracts, 299. (4) W. N. Deatherage, as executor of the last will and testament of B. F. Deatherage, under the law, should account to Creason, as administrator of the partnership estate of Deatherage & Creason, for all fees of said partnership firm collected by said B. F. Deatherage during his lifetime, and appropriated to his, B. F. Deatherage's own use, and also for all moneys and fees belonging to said Deatherage & Creason partnership firm collected by said W. N. Deatherage, as executor, or otherwise, after the death of said B. F. Deatherage. 6 C. J. 754, sec. 334; Hargadine v. Gibbons, 114 Mo. 564; Meriwether v. Railroad, 128 Mo.App. 658; Sec. 690. R. S. 1919; Curtis v. Railroad, 118 Mo.App. 350; Wait v. Railroad, 204 Mo. 502; Lawson v. Telephone Co., 178 Mo.App. 124; Lipscomb v. Adams, 193 Mo. 530; Neeper v. Heinback, 249 S.W. 442; Rumbarger v. Yokin, 174 F. 59; 30 Cyc. 610, 611, 629, 630, 631, 638, 639; 20 Am. & Eng. Ency. Law, 115-116; 22 Am. & Eng. Ency. Law, 225, par. (e); Henry v. Bassett, 75 Mo. 89; Lawson on Contracts, 299. (5) Being co-counsel with Cowan & Burney in said cases, and being employed by Cowan with the approval and consent of Spiller, Deatherage & Creason had a lien on the cause of action from the time of their employment and filing of suit which lien merged into an equitable assignment pro tanto of the judgment, when the judgment in said causes became final; and it was their privilege under the law, and the privilege and duty of the plaintiff, Creason, as administrator of said partnership estate, to undertake to collect said fees from the railroad companies or to collect them from any persons, including Harding, Murphy and Stinson, who, with knowledge of the situation, received said fees and did not account to Deatherage & Creason or to the plaintiff, for the same. Their contract was made in Missouri, and is subject to the statute and decisions of this State. Conkling v. Austin, 111 Mo.App. 302; 6 C. J. sec. 404, p. 791; Sec. 364, p. 766; Sec. 409, pp. 795, 796; Sec. 690, R. S. 1919; Barthels v. Garrells, 227 S.W. 910; Young v. Renshaw, 102 Mo.App. 185; Lawson v. Telephone Co., 178 Mo.App. 132; Curtis v. Railway, 118 Mo.App. 351; Peri v. Railroad, 152 N.Y. 521; Wait v. Railroad, 204 Mo. 503; 3 Am. & Eng. Ency. Law (2 Ed.) 446, 447, 466, 467. (6) The judgment in the cases of Spiller, against said railroads being final, and the interest of Deatherage & Creason therein becoming vested under the law, attorneys, Cowan & Burney, and defendants, Harding, Murphy and Stinson, neither severally nor jointly, could terminate the contract between Deatherage & Creason and said Cowan & Burney, nor deprive said Deatherage & Creason of their right to the amount of their fee as per their contract with Cowan & Burney. Plaintiff, as partnership administrator, is entitled to judgment therefor, in addition to the judgment against W. N. Deatherage, executor, erroneously set aside by the trial court sustaining the motion of said W. N. Deatherage, executor, for a new trial. 6 C. J. sec. 320, p. 744; McElhinney v. Kline, 6 Mo.App. 94; Kersey v. Garton, 77 Mo. 645; Reynolds v. Clark, 162 Mo. 683; State ex rel. v. Butler Co., 164 Mo. 219; 3 Am. & Eng. Ency. Law (2 Ed.) 474.

Ryland, Boys, Stinson, Mag & Thomson and Harding, Murphy & Tucker for appellant defendants.

(1) The court properly sustained the motion for a new trial filed by W. N. Deatherage, Executor. The uncontradicted evidence affirmed that two years after the dissolution of the Deatherage and Creason partnership, Cowan either (a) engaged Deatherage alone to perform additional services in the future conduct of the Spiller litigation and agreed to pay him alone an additional compensation therefor, or (b) voluntarily gave to him alone the difference between one-half and one-third of the attorneys' fees. From either point of view plaintiff had no interest. If it was a contract it was for the performance of additional future services, was not old, unfinished business, but new business, and a new contract. Deatherage had no power under the law to bind Creason by a new contract or a modification or change of the old one. Neither did he attempt to do so. Deatherage was free to make any new contract for himself which did not affect the partnership agreement. Mutual Savings Institution v. Enslin, 37 Mo. 453; Richards v. Moies, 31 Mo. 430; Moore v. Lackman, 52 Mo. 323; Citizens Trust Co. v. Coppage, 227 S.W. 1057; Seufert v. Gills, 230 Mo. 453; 20 R. C. L. 968, sec. 198; 1 Rowley, Modern Law of Partnership, sec. 594, p. 774, note. If the increase was a gift from Cowan to Deatherage alone, Creason had no interest therein. Scott v. Thompson, 222 S.W. 115. (2) The court erroneously sustained Mr. Creason's motion for new trial as to Harding, Murphy and Stinson: (a) Creason's petition is not bottomed on the theory of a lien. It is not a movement to enforce a lien. It is simply a petition for an accounting. (b) Cowan employed Deatherage for personal reasons. The death of Deatherage terminated the firm contract. If the firm was entitled to a lien it was for the value of services rendered and unpaid for up to the time of the death of Deatherage. The value of such services was neither pled nor proven. Baxter v. Billings, 83 F. 791; Lawson v. Telephone Co., 178 Mo.App. 128; 6 C. J. 675, sec. 187; 6 C. J. 676, sec. 190; 6 C. J. 726, sec. 289; 6 C. J. 744, sec. 320; 6 C. J. 746, sec. 325. (c) The firm had no lien. Deatherage was employed by Cowan, not by Spiller. He was to be paid by Cowan, not by Spiller. Spiller's acquiescence in the employment must be construed in the light of the fact that Cowan was to pay the fee. Smith v. Wright, 153 Mo.App. 719; 6 C. J. 787, sec. 399; Larned v. Dubuque, 86 Iowa 166; Gibson v. Railroad Co., 122 Iowa 565; Lathrop v. Hallett, 20 Colo.App. 207. (d) The contract price was not the value of the firm fee, because by the death of Deatherage the firm was unable to fulfill its contract, nor was the firm fee fixed and liquidated by the judgment of the Supreme Court, for the reason that that judgment was not final in contemplation of the lien statutes. 6 C. J. 792, sec. 404; Wait v. Railway, 204 Mo. 491; 6 C. J. 766, sec. 364; 6 C. J. 794; Lawson v. Telephone Co., 178 Mo.App. 128. (3) The court improperly sustained Creason's motion for new trial against Harding, Murphy & Stinson for the further reason that if the Deatherage firm had a lien, then Harding, Murphy & Stinson had a lien, and there were sufficient funds in the hands of Cowan to pay both liens. Bishop v. Railways, 165 Mo.App. 226. (4) The court erred in sustaining Creason's motion for new trial against Harding, Murphy & Stinson for the additional reason that (a) he is pursuing the wrong remedy, and (b) is pursuing the wrong persons.

White, J. Blair, P. J., concurs; Walker, J., absent.

OPINION

WHITE

The plaintiff, as surviving partner and administrator of the partnership estate of B. F. Deatherage and Goodwin Creason, brings this suit against W. N. Deatherage, executor of the last will of B. F. Deatherage, and against Harding, Murphy & Stinson, attorneys, who later became associated with the cases concerning which an accounting is asked. The demand is for an accounting for attorneys' fees, collected by B. F. Deatherage in his lifetime and by Harding, Murphy & Stinson after his death, in all of which the plaintiff claims he is entitled to share.

The cases out of which the claim grew arose in this way: Cowan & Burney, of Fort Worth, Texas, general attorneys for the Cattle Raisers...