Dempsey v. McGinnis

• Decision Date: 02 January 1923
• Docket Number: No. 17367.,17367.
• Citation: 249 S.W. 662
• Parties: DEMPSEY v. McGINNIS
• Court: Missouri Court of Appeals

249 S.W. 662

DEMPSEY v. McGINNIS

No. 17367.

St. Louis Court of Appeals. Missouri.

January 2, 1923.

Rehearing Denied February 6, 1923.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Sallie C. Dempsey against Tom B. McGinnis. Judgment for plaintiff, and defendant appeals. Affirmed.

Hostetter & Haley, of Bowling Green, for appellant.

J. E. Thompson, of Bowling Green, and Pearson & Pearson, of Louisiana, Mo., for respondent.

BIGGS, C.

This action upon a written agreement in the form of an account stated resulted in a verdict and judgment for plaintiff follewing a peremptory instruction given to the jury to find for plaintiff. Defendant appeals, claiming that the court erred in the admission and rejection of evidence, and also in giving the peremptory instruction.

Upon a former appeal (Dempsey v. Mc-Ginnis, 203 Mo. App. 494, 219 S. W. 148, where the written instrument and a statement of the facts will be found) this court ruled that the instrument was an account stated; that in order to surcharge the account or to prove the omission of an item therefrom which is sought to be inserted to the credit of the defendant, it was necessary to allege and prove that the item in question was not incorporated into the account because of accident, fraud, or mistake; and that on account of the fact that there was neither allegation nor proof by defendant of any fraud, accident, or mistake as to the omission of the items in controversy that it was error to give certain instructions on behalf of defendant in reference thereto and to refuse plaintiff's instruction on the subject, and hence a judgment for defendant was reversed and the cause remanded.

I. C. Dempsey, now deceased, and who assigned the account to plaintiff, and the defendant, were law partners, and the controversy grows out of a settlement of their partnership 'affairs. The items in dispute, and which defendant claims were omitted from the settlement, are referred to as "fees in receivership case of Citizens' Bank," and "fees in Bonham Freeman case."

Upon the second trial after the cause was remanded by this court, the defendant filed a second amended answer, in which, after alleging the pendency of said receivership case during the existence of the partnership and the fact that Dempsey was appointed receiver therein and that the fees and allowances arising therefrom were partnership assets and that the defendant performed services in such receivership matter, it is averred as follows:

"Defendant says that said receivership matter was not included in the list of cases mentioned in the account sued on as yet pending in court and was not listed as one of the matters in which fees and allowances which might be received by said Dempsey should thereafter be divided between said Dempsey and defendant on account of fraud on the part of said Dempsey, and on account of accident and mistake in this, to wit: That the said Dempsey had in 1897 entered into a written contract with the stockholders and officers of the Citizens' Bank, by which he agreed that he would perform the duties of receiver for a fixed compensation of $1,200, and that such receivership matter extended over a period of 12 years or thereabout, and that said Dempsey claimed that his contract was void and not binding upon him, and that he was really entitled to 2 per cent. on the assets of said bank, amounting to $3,200 for his services as such receiver, and that such matter was then in litigation as to whether he could be held to his contract for only $1.200 or whether he could obtain $3,200 on a quantum meruit basis, and that because the stockholders and officers of such bank were litigating with said Dempsey and denying his right to repudiate his written contract for $1,200 compensation, he, the said Dempsey, preferred that such receivership matter be entirely omitted from the account sued on, as any entries which might be made in the books of said firm of Dempsey & McGinnis might be discovered by the stockholders and officers of said bank who were then litigating with him, Dempsey, and contending that he abide by the terms of his written contract and accept $1,200 as his compensation instead of expanding his claim to $3,200, and that the discovery of any entries in the partnership books of Dempsey & McGinnis might prove embarrassing to him (Dempsey) and might be used against him in their pending litigation; that he, the said Dempsey, recognized his obligation to divide such fees as he might be allowed as such receiver and one-half of the attorneys' fee which might be allowed Tapley & Fitzgerrell in such receivership matter between him, Dempsey, and this defendant.

"Defendant says that after April 9, 1909, the litigation between said Dempsey and the said objecting stockholders and officers of said bank was ended and the said Dempsey collected onehalf of the sum of the receivership fees and one-half of the attorneys' fee allowed Tapley & Fitzgerrell under an arrangement with said firm, amounting altogether to $2;350, and did not pay this defendant any part thereof."

The answer further alleges that the Bonham Freeman case was brought by the firm of Tapley & Fitzgerrell in 1918, and that such firm was negotiating with the firm of Dempsey & McGinnis to assist them in such litigation, but had not definitely engaged said firm of Dempsey & McGinnis at the time the account sued on was entered in the partnership books of the latter firm on April 9, 1909, and that by reason of the fact that no definite employment had been consummated at said date is the reason said Freeman case was not listed:In said account among the unfinished cases and pending business, the fees derived from which were to be divided in the future.

It is further alleged that shortly subsequent to April 9, 1909, the date of the settlement agreement between the partners, the firm of Dempsey & McGinnis were engaged to assist Tapley & Fitzgerrell in said Freeman case, and that they did assist in said case, both members taking part in the preparation of said case for trial; that defendant was entitled to one-half of whatever fees might be realized. out of said Freeman case; that $250 was collected after a compromise of said case by said Dempsey and the plaintiff on account of fees due the firm of Dempsey & McGinnis; and that this defendant is entitled to one-half of such amount of $250, and has never received any portion of same, or any fees on account of services in said case from any source.

The instrument being In writing and signed by both Dempsey and McGinnis, the plaintiff made a prima facie case by offering the paper in evidence (no question arising over its execution and identification) and proving that the instrument, including the account stated, was assigned by Dempsey to plaintiff. In addition, plaintiff offered an admission by defendant's counsel contained in the bill of exceptions covering the former trial, to the effect that the account was assigned by Mr. Dempsey to Mrs. Dempsey, the plaintiff, on May 3, 1911.

Plaintiff having rested, ...