Creason v. Harding

• Decision Date: 04 April 1939
• Docket Number: 34984
• Citation: 126 S.W.2d 1179,344 Mo. 452
• Parties: Goodwin Creason, Administering Surviving Partner of the Partnership Firm of Deatherage & Creason, Plaintiff and Appellant, v. John T. Harding, David A. Murphy and Paul R. Stinson, Defendants and Respondents
• Court: Missouri Supreme Court

126 S.W.2d 1179

344 Mo. 452

Goodwin Creason, AdministeringSurviving Partner of the Partnership Firm of Deatherage & Creason, Plaintiff and Appellant, v. John T. Harding, David A. Murphy and Paul R. Stinson, Defendants and Respondents

No. 34984

Supreme Court of Missouri

April 4, 1939

Appeal from Jackson Circuit Court, Hon. Darius A. Brown Judge.

Reversed and remanded (with directions).

Goodwin Creason,A. N. Gossett, Gossett, Ellis, Dietrich & Tyler and Lucian Lane for appellant.

(1)The trial court erred in considering anything except the matter of the accounting by Harding, Murphy & Stinson, to Creason administrator, for one-sixth of the recoveries or collections by them after the death of Mr. Deatherage, against the four receivership roads.The decision of this court on the former appeal is res adjudicata of all issues raised or that could have been raised at the first trial and on the first appeal.This court on former appeal of this cause, 325 Mo. 661, 30 S.W.2d 1, in the body of its opinion, held no less than three times that plaintiff, as surviving and administering partner of the firm of Deatherage & Creason was entitled to an accounting from defendants, Harding Murphy & Stinson, for one-sixth of the recoveries against the four receivership railroads, after the death of B. F. Deatherage.That plaintiff's attorney's lien may be established in equity for his fees collected by defendant's and remanded the case for the trial court to do a specific thing, namely to have Harding, Murphy & Stinson render an accounting "of fees collected by said defendants after the death of Deatherage, as indicated above."Keeton v. Jarndt,259 Mo. 190;Marston v. Catterlin,290 Mo. 153, 234 S.W. 818;Zeitinger v. Hargadine D. G. Co.,309 Mo. 433, 274 S.W. 789;Denny v. Guyton,331 Mo. 1115, 57 S.W.2d 415;Coleman v. Northwest Mut. Life,233 S.W. 187;Bushman v. Barlow,316 Mo. 916, 15 S.W.2d 332;Moss Tie & Timber Co. v. Allen,19 S.W.2d 23;Sheppard v. Wagner,240 Mo. 442;Stone v. Railroad Co.,261 Mo. 78, 169 S.W. 88;Spring v. Grefing,315 Mo. 529, 289 S.W. 827;Hamilton v. McLean,169 Mo. 73, 68 S.W. 936;Donnell v. Wright,147 Mo. 647, 49 S.W. 874;State ex rel. McGrew Coal Co. v. Ragland,97 S.W.2d 115;Flynn v. Kinealy,95 S.W.2d 1212;Wors v. Tarlton,95 S.W.2d 1207.On the former appeal of this case, this court held that since defendants claimed that they were entitled to all of the recoveries against the four railroads in question, they could not invoke the defense that plaintiff could recover in any event upon quantum meruit.At the second trial in the nisicourt, defendants, by paragraph 31 in their third amended answer, still claim that they are entitled to all of said fees and that plaintiff is entitled to no part thereof.Therefore, defendants are estopped from invoking quantum meruit.As they did not so claim on the first trial, they cannot now so claim.It is res adjudicata.(2)The trial court erred in permitting defendants to amend pleadings and invoke alleged new defense that Deatherage & Creason had taken more of the specially allowed fees than they were entitled to receive, and in off-setting against the one-sixth of the fees, found by this court to be due Creason, any part of said allowed attorneys' fees.(3)Plaintiff may look to defendants, Harding, Murphy & Stinson and each of them, for recovery of the total amount due him, though some of it was paid by defendants to Leahy & Saunders.The original contract with Murphy for his firm was that he should receive one-half of the fee received on claims against the receivership roads.Some time thereafter that was changed to a gross onehalf of the fee.Thereafter Leahy & Saunders were employed by Murphy and were paid out of Murphy's portion of the fee.On this, evidence, the Supreme Court, on the former appeal held that Murphy employed Leahy & Saunders.The Supreme Court, on the former appeal also held that plaintiff did not have to go to Texas and sue Spiller or Cowan to recover, but could collect same from whoever prosecuted the actions.That is res adjudicata.Authorities under point 1.Ireland v. Spikard,95 Mo.App. 64, 68 S.W. 751;Knight v. Glenn Falls Ins. Co.,20 S.W.2d 943;Sawyer v. Walker,204 Mo. 139, 102 S.W. 550;Wegman v. Rothwell,99 S.W. 61, 121 Mo.App. 418.(4) Each defendant is liable to plaintiff for the whole one-sixth of the recoveries.The trial court erroneously held that each defendant should account for only what he received.Stinson, though he was represented and named as one of the parties in all of the answers prior to July, 1933, including the third amended answer of the defendants, and although he participated in the early prosecution of said collections, and although he accepted at least his pro rata portion of the settlement with the M. K. & T. Railroad Company, now insists that, in any event, he can only be held for the amount which he actually received and the trial court so erroneously held.The law clearly holds each member of a partnership firm liable for the actions of the other members of the firm.Moreover, this defense is invoked for the first time after the case was adjudicated and remanded.This court, on the former appeal, held that each of the defendants should account to plaintiff for fees collected after the death of Mr. Deatherage.That is res adjudicata.Priddy v. MacKenzie,205 Mo. 181, 103 S.W. 972;Ireland v. Spickard,95 Mo.App. 64, 68 S.W. 751;Knight v. Glenn Falls Ins. Co.,204 Mo. 139, 102 S.W. 550;Wegman v. Rothwell,99 S.W. 61, 121 Mo.App. 418;Midland Natl. Bank v. Schoen,27 S.W. 547, 123 Mo. 650;Sec. 8886, R. S. 1929;Hartz v. Page,20 S.W.2d 701, 224 Mo.App. 83;47 C. J., sec. 390, p. 905;Frances v. McNeal,228 U.S. 695, 33 S.Ct. 701.The agreement Exhibit 4, is clear and unambiguous and shows on its face that it was entered into merely to permit Spiller to settle his case against the St. Louis & San Francisco Railroad and was not a final settlement, between plaintiff and respondents, of plaintiff's claim for fees in the Frisco case.It was, therefore, error to permit defendants to introduce in evidence correspondence between Paul R. Stinson and W. N. Deatherage, executor.Commercial Elec. Co. v. Mo. Corn Co.,148 S.W. 995, 166 Mo.App. 332;Belch v. Scott,157 S.W. 658, 171 Mo.App. 357;Southern Ry. Co. v. Berthold,247 S.W. 219;Buhler Mill Co. v. Jolly,261 S.W. 353, 217 Mo.App. 240;Brown v. Houghton Const. Co.,227 S.W. 137;Sanders v. Sheets, 287 S.W. 1069.

James P. Aylward, Harding, Murphy & Tucker and R. C. Tucker for John T. Harding and David A. Murphy.

(1) The late Honorable Darius A. Brown conducted the last trial of this case.He held an accounting which appellant desired and found that there was nothing due appellant.His findings of fact while not binding on this court are highly persuasive and this court will defer to such findings of fact unless they are against the weight of the evidence.While appellant seeks to have these findings of fact reviewed and reversed he does not claim in his assignments of error not in his points and authorities that they are not abundantly supported by the greater weight of the evidence.Indeed there could have been no other finding.Stibal v. Nation,98 S.W.2d 729;Manahan v. Manahan,52 S.W.2d 827;Shaw v. Butler,78 S.W.2d 421;Selle v. Selle,88 S.W.2d 880;Hannibal v. Ice Co.,93 S.W.2d 1014;Blackiston v. Russell,44 S.W.2d 26;Jones v. Thomas,218 Mo. 540;Batson v. Peters,89 S.W.2d 49;Cities Service Oil Co. v. Berenice Holding Co.,90 S.W.2d 137;Mining Co. v. Coyne,164 Mo.App. 507;Woodruff v. Rusk,76 S.W.2d 711.(2)The court properly found that appellant's contract of employment was for a percentage of Cowan's contract and that no later or additional contract was ever made which gave to appellant's firm $ 21,352.39 in addition to their percentage fees.Appellant's own evidence established the percentage contract and he offered no proof of any additional contract, but relies on assumptions, beliefs or alleged admissions of respondents who had no personal knowledge of the matter, during the first trial.No assumption, belief, "theory" or admission of appellant or any other person claiming under the contract could bind Spiller to pay appellant's firm additional fees.Unless Spiller actually and intentionally made the contract, he owes appellant nothing.If he owes appellant nothing, appellant has no lien on his judgment.If appellant has no lien, he cannot recover against respondents.(3) The trial judge properly found that appellant's firm collected $ 21,352.39 of allowed costs which belonged to Spiller and should be charged with 5/6 of that amount.Of this amount $ 10,699.96 were fees allowed Spiller in the Katy, Mo. Pac. and Frisco cases which cases were handled by the new attorneys.Appellant claims that he had the right to hold and keep this $ 10,699.96 even if Spiller had lost the litigation against said three roads and had been out his expenses of $ 6392.39.That is to say -- he would get all recoveries and the client would pay all expenses.(4) The litigation was initiated under Sections 8-16,Title 49, U.S.C.A., which provide for the taxing of attorney's fees as a part of the costs in the case.These fees were taxed as costs in favor of Spiller, not the attorneys.Under the law they belonged to Spiller, not to the attorneys.Cowan and Spiller so testified.Secs. 8-16,Title 49, U.S.C.A;Vaughan v. Humphreys,22 A. L. R. 1202;In re Howell,215 N.Y. 466;Earley v. Whitney,94 N.Y.S. 728;In re Tinney,176 N.Y.S. 102;Ransom v. Ransom,127 N.Y.S. 1027;Bostick v. Cox,28 Ark. 566;Clay v. Moulton,75 Me. 315;Yorton v. Ry. Co.,62 Wis. 367;Ely v. Peet,52 N.J.Eq. 734;Boynton v. Tarbell,17 N.E. 340;Dwyer v. Ellis,208 Mass. 196;McIlvaine v....