Davies & Davies v. Patterson

• Decision Date: 24 June 1918
• Docket Number: 64
• Citation: 205 S.W. 118,135 Ark. 22
• Parties: DAVIES & DAVIES v. PATTERSON
• Court: Arkansas Supreme Court

205 S.W. 118

135 Ark. 22

DAVIES & DAVIES v. PATTERSON

No. 64

Supreme Court of Arkansas

June 24, 1918

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Judgment affirmed.

Davies & Davies, pro se.

1. The matter in controversy in this suit was settled in 201 S.W 504. The directed verdict is grievously wrong, and contrary to that decision.

2. The question should have been submitted to a jury. 140 P. 439; 57 Ark. 461; 38 Am. St. 254. Under the contract appellants were entitled to recover. We were not allowed to prove the services rendered nor their value.

3. The court erred in overruling the demurrer and in not sustaining the motion to dismiss. Kirby & Castle's Digest §§ 1078, 7809.

4. Numerous errors were made in ruling upon the evidence, which were duly excepted to.

STATEMENT OF FACTS.

This action was instituted by the appellee, plaintiff below against the Stuyvesant Insurance Company on a policy of fire insurance. It was alleged that the plaintiff made proof of loss and that the insurance company admitted its liability on the policy in the sum of $ 847.20 which the plaintiff was willing to accept and had demanded payment thereof but the company had refused to pay the same. The company answered admitting its liability, but alleged that it issued its draft payable to the plaintiff; that the draft was delivered to Davies & Davies, plaintiff's attorneys, who were then in possession of the same and who declined to surrender the same, that the company was ready and willing to pay the draft but that same was negotiable paper and that Davies & Davies claimed a personal interest in the draft which prevented the issuance of a duplicate and canceling the outstanding draft.

The court ordered that Davies & Davies be made parties defendant in the action and that the insurance company pay the sum of $ 847.20 into court, all of which was done.

Davies & Davies filed what they designated their answer and interplea in which they set up that they had a lien on the draft in question in the sum of $ 124.50, for balance due them as attorneys' fee for services rendered in five several actions at law brought by them as attorneys for Patterson against the insurance company.

Upon the payment of the money in court by the insurance company the complaint against it was dismissed and the cause proceeded to a trial before a jury on the issue between Davies & Davies and A. J. Patterson as to the attorneys' fee.

The facts developed on this issue were substantially as follows On the 14th of November, Davies & Davies, hereafter called appellants, and A. J. Patterson, hereafter called appellee, entered into the following contract: "It is hereby agreed by and between A. J. Patterson and the firm of Davies & Davies, attorneys, that the said attorneys are to attend to the business of securing a settlement of the claim of said Patterson for payment of five insurance policies for damages on account of fire sustained to and on account of a fire November 2, 1916, by which the building and furniture of said Patterson were burned, situated on lot 10, block 146, in Hot Springs, Arkansas, for a fee of one hundred dollars to be paid by said Patterson whether suit is brought or not. If suit is brought and a recovery is had for an attorney's fee, it is agreed that the amount paid by the said Patterson shall be returned to said Patterson from any fee so recovered. If no fee is allowed by the court then said sum of $ 100 is to be kept by said Davies & Davies, and in that event shall be considered as payment in full for such services as shall be rendered by said Davies & Davies, on account of the fact that said Patterson shall have the costs of any such suit to pay, and shall not have recovered more than the insurance companies have offered to pay."

R. G. Davies' testimony tended to prove that the contract above contemplated the bringing of five suits against the several insurance companies for sums covered by their respective policies amounting in the aggregate to $ 7,000, provided the insurance companies had not settled within sixty days from the time they received the proof of loss. The proofs of loss were received by the companies about November 25. The appellant agreed with the several companies upon a settlement in which he was to receive in the aggregate the sum of $ 5,000, which sum was to be paid within sixty days from the receipt of the proof of loss. This agreement for settlement was made without the knowledge of the appellants and when R. G. Davies was informed of it by the appellee he protested against it and stated to the appellee that he was entitled to the benefit of his contract and that if he, appellee, had settled the lawsuits without the appellants' consent they were entitled to the same amounts that they would have received if they had brought suit. Appellee replied that he had settled. Davies then asked him whether he was going to pay the fee or not. The appellee replied, "If they do not pay all the money in sixty days from the time we made that proof, why, go ahead and sue them." Davies wrote to the companies a letter to that effect on December 26, 1916.

Patterson was not living in Hot Springs but was there at the time when he gave Davies the directions to write the insurance companies.

On the 20th of January, 1917, appellants had received drafts from three of the companies covering the amounts as agreed upon between them and the appellee. Appellants wrote the appellee that they had received these checks but that the others had not arrived and that unless the checks of all five companies were turned over by the 22nd appellants would bring suit; that they had forwarded the checks received for payment but that the companies had refused settlement on the ground that the checks would have to be endorsed by the appellee. In the letter of appellants to appellee, appellants informed him that as the companies had refused to pay he could sue for the full amount. Among other things appellants wrote "if you do not want to sue them wire us as soon as this reaches you. We have prepared the complaints and will file them unless you refuse to permit us to bring suit according to our agreement." Appellants also wrote the appellee on the 25th of January, stating among other things that they had received four of the checks, and that one had not yet arrived. This letter informed the appellee that appellants had brought suit on all the policies for the full amount thereof and attorneys' fee; that they had cashed one of the checks for $ 678.04 and they were enclosing the rest. In this letter appellants among other things advised appellee that he should not receipt the insurance company in full but have it distinctly understood that the payment of the checks was only to go on the credit of the indebtedness as a whole. Appellants further stated, "The time elapsed before we acted and they refused to pay some of the checks and one of them has not arrived yet." Other letters were written by appellants to the appellee all of which he acknowledged he received, in which appellants protested against the appellee accepting the amount of the checks and advised him if he did so that they would insist upon his liability to them the same as if they had pursued the litigation to the end and recovered the full amount for which they sued. In a letter of the 27th of January appellants wrote the appellee among other things as follows: "One of the checks still not turned over. Sent three to you by registered letter and cashed the other."

After introducing the above letters R. G. Davies testified among other things that what they stated in those letters was true. "We did not receive all the drafts before we brought the suits. We received three. The fourth was received on the 27th and the last one on the 30th of January. The suits were brought either on the 23rd or 24th." Davies further testified that after the suits had been brought that appellee demanded that he dismiss the same and stated that he would pay the $ 100 mentioned in the contract, but that the witness refused to accept that amount and insisted that appellee owed more than that.

Witness was asked how he arrived at $ 124 which he claimed, and answered that if he had maintained suits for $ 7,000 with 12 per cent. penalty added to that it would...