Davis & Goggin v. State Nat. Bank

• Decision Date: 20 March 1913
• Parties: DAVIS & GOGGIN v. STATE NAT. BANK OF EL PASO et al.
• Court: Texas Court of Appeals

156 S.W. 321

DAVIS & GOGGIN v. STATE NAT. BANK OF EL PASO et al.

Court of Civil Appeals of Texas. El Paso.

March 20, 1913.

Rehearing Denied April 25, 1913.

Error to District Court, El Paso County; James R. Harper, Judge.

Action by C. B. Bell against J. P. Casey and the State National Bank of El Paso, in which Davis & Goggin intervened. There was a judgment for the bank against the interveners, and they bring error. Reformed and affirmed.

Davis & Goggin, of El Paso, for plaintiffs in error. Beall & Kemp, of El Paso, for defendants in error.

HIGGINS, J.

On February 17, 1909, C. B. Bell filed suit against J. P. Casey for the recovery of one-half of the proceeds of the sale of certain mining properties, the total proceeds of which sale amounted to $38,500, of which amount $2,500 had been previously paid to Casey, $15,500 thereof had been deposited to his account in the State National Bank, and $20,500 was to be placed to his account in said bank on or before April 25, 1909. The appointment of a receiver was asked, and an injunction was issued restraining the bank from paying to Casey any part of said $15,500, and on February 25, 1909, in accordance with the prayer of the petition, George D. Flory, who was likewise cashier of said bank, was appointed receiver of the funds in controversy, and the bank was directed to deliver, and did deliver, to the receiver all of said moneys then on hand belonging to Casey, or which afterwards came into its possession. On December 7, 1909, Bell amended his petition and sought to recover the entire proceeds of such sale. On May 23, 1910, Bell recovered judgment against Casey for the sum of $23,250, and the same was decreed to be a charge against the funds in the receiver's hands. The judgment ordered the money in the hands of the receiver to be paid to Casey after the judgment in favor of Bell and court costs had been first satisfied. On June 3, 1909, Casey executed an instrument in writing, reciting that he desired to assign the said funds in the receiver's hands for the purpose of raising money thereon, wherefore he assigned to L. J. Gilchrist the said sum of $38,200.00, and guaranteed the payment of one-half of said sum to the said Gilchrist, and he covenanted that he was in fact the owner of the entire fund and entitled to assign and transfer the same, and authorized Gilchrist for his own use and benefit to collect and receive from the said receiver, Flory, the above-mentioned sum and funds and every part thereof. This assignment was filed in the cause on June 3, 1909, and it would seem the State National Bank is claiming some rights thereunder; but there is nothing whatever in this record to indicate that the bank in any manner acquired any rights under this assignment, and the same is entirely irrelevant to this proceeding, as none of the parties in any wise connected themselves with this transfer. On May 24, 1910, Casey, in writing, transferred and assigned to the State National Bank all of his right and interest of every nature under the judgment, and the same was filed among the papers of the cause on that date. Bell's rights under the judgment by assignments passed to C. O. Ellis and W. M. Peticolas. On December 18, 1911, plaintiff filed a motion alleging the execution of the assignments to Ellis, Peticolas, and the bank, and prayed distribution of the funds in the receiver's hands and payment thereof to said assignees. The State National Bank and the receiver on the same date joined in said motion and asked for distribution of said funds to such assignees.

On December 30, 1911, Waters Davis and J. M. Goggin, composing the law firm of Davis & Goggin, filed their plea in intervention in the cause, alleging that by virtue of an assignment made to them by Casey on or about February 20, 1909, they had an interest in the funds in the hands of the receiver or a lien upon the same to secure an attorney's fee for services rendered in the cause; that on the date last mentioned Casey promised and agreed to pay them the sum of $1,500 for legal services rendered and to be rendered in the cause, and he then and there verbally assigned to interveners so much of the funds mentioned in the receiver's hands as would be necessary to satisfy said fee; that on March 18, 1909, he paid interveners the sum of $250, leaving a balance of $1,250 due and unpaid; that on the ____ day of ____, 19__, they notified the State National Bank of their assignment in part, and thereafter, on May 27, 1909, again notified the bank and the receiver fully as to the facts concerning said assignment, and the receiver and the attorney for the bank promised and agreed that there was no purpose on the part of the bank to disregard interveners' rights, and that interveners' rights to an attorney's fee out of the funds would be protected; that the assignment in favor of interveners was prior to and had precedence over the assignment to the bank above referred to.

Upon hearing of the motion for distribution of the funds in the receiver's hands, an order was entered directing payment of court costs to be first made, that the assignees Peticolas and Ellis be paid the amount awarded Bell in the cause, and that the remaining moneys and property in the receiver's hands awarded to Casey be paid and delivered to the State National Bank by virtue of their rights under aforesaid assignment.

From the order of the court disallowing their claim and ordering distribution of the funds as above stated, the interveners, Davis & Goggin, prosecute this writ of error, and it is here contended in effect that the agreement between Davis & Goggin and Casey constituted an equitable assignment pro tanto of the funds in controversy, and that by virtue thereof they had an equitable interest in or lien upon the funds in the hands of the receiver superior to the rights of the bank under its subsequent assignment.

The trial court filed no findings of fact or conclusions of law, and the question presents itself for review upon the record made upon the hearing.

The intervener Waters Davis conducted the negotiations with Casey, and testified: "I would state that, when this suit was filed, Mr. Casey employed us to defend the suit, and the conversation was with me. I had the transactions with Mr. Casey as to attorney's fees, etc. It was agreed at that time that the attorney's fee should be $1,500, payable then; but afterwards Mr. Casey thought that the plaintiff was not going to claim but half the funds in the hands of the bank, so I told him that, if the plaintiff didn't claim but half of what we thought he was going to claim, we would just make the fee half, $750.00. But as a matter of fact, I think by first amended original petition, the plaintiff claimed all the funds, so that the $1,500 fee that we originally agreed upon was in effect. At the time we agreed upon the fee of $1,500, Mr. Casey said that he had no money, no ready money available, and gave us an interest in the fund, that we might take our fee out of the fund that was in the hands of the bank, or the receiver at the time. I am not positive that the receiver had been appointed then. I may be mistaken as to that, but it was just after the suit was filed, and I notified the bank; I think that when I notified them I first notified them before there had been any assignment to them at all. That is my recollection of it. At that time it was before the amended petition had been filed, claiming the whole fund, and I think I notified them that our fee would be $750.00, and that a portion of the fund had been assigned to us, but afterwards there was an assignment made to them, and I sent them another notice. I have given them notice to produce that letter. This is a letter that I sent the bank and also Mr. Flory, on May 27, 1910, which says: `State National Bank, City—Gentlemen: Upon learning of the fact that Mr. Jno. P. Casey, Jr., has assigned to you his interest in judgment in the case of Bell v. Casey, recently tried in our district court, we took up with Mr. George Flory, your cashier, and Mr. Maury Kemp, your attorney, the matter of assignment to us of so much of the fund as is necessary to pay our attorney's fees, and have been advised by them that there was no purpose on the part of the bank to disregard our rights and that our right to attorney's fee out of the fund would be protected. We think, however, that a formal notice would be well so that you might keep the matter in mind and have our notice on record. Would say that the attorney's fee in this case at the time the suit was instituted was fixed at the sum of $1,500, but it was afterwards thought by Mr. Casey that plaintiff would claim only half of the money on deposit with you instead of all of it, in which event we agreed that the attorney's fee would be reduced to $750. Plaintiff, however, has continued to claim the whole amount so that the sum of $1,500.00 is applicable as attorney's fee instead of $750.00 as was contemplated might be the case. Mr. Casey, in order to secure our fee at the time it was agreed to, verbally assigned to us so much of the amount recovered in the judgment as would be sufficient to satisfy the same. Notice of the assignment, when it was thought the claim might be reduced by plaintiff to recovery of half the proceeds of the amount on deposit, we think was given to you in writing, but we do not know that we mentioned the fact that the agreed fee was $1,500.00 in the absence of plaintiff's modified claim. You may refer to Mr. Casey as to the correct statement of the facts herein and in view of which we wish that you would kindly protect our fee in the fund as was agreed upon by Mr. Casey before your assignments were made. Yours respectfully, [Signed] Davis & Goggin.' I will state that I saw Mr. Flory at the bank, and Mr. Flory told me there was no purpose on the part of the bank to affect our attorney's fees by their assignment, and that they would protect us in the fund. I also saw Mr....