Dudley v. Adams, 5-1165

• Decision Date: 18 February 1957
• Docket Number: No. 5-1165,5-1165
• Citation: 227 Ark. 376,298 S.W.2d 701
• Parties: Denver L. DUDLEY, Appellant, v. Arthur L. ADAMS, Appellee.
• Court: Arkansas Supreme Court

Page 701

298 S.W.2d 701

227 Ark. 376

Denver L. DUDLEY, Appellant, v.Arthur L. ADAMS, Appellee.

No. 5-1165.

Supreme Court of Arkansas.

Feb. 18, 1957.

Denver L. Dudley, pro se, and Claude B. Brinton, Jonesboro, for appellant.

Arthur L. Adams, pro se, and W. B. Howard, Jonesboro, for appellee.

HOLT, Justice.

This suit involves a dispute between two attorneys over the division of an attorney's fee.February 13, 1956, appellee, Adams, filed suit against appellant, Dudley, in which he[Adams] alleged that appellant, who had previously been employed by E. L. Garris to prosecute a tort action for him [Garris] against the Greyhound Bus Lines on a contract of 50% of any recovery, employed appellee to assist him in the prosecution of the claim and that appellant agreed to pay appellee one-half of Dudley's fee under Dudley's contract with Garris.He further alleged that he assisted Dudley in making the settlement for $5,000, and that he, Adams, was entitled to one-half of Dudley's fee of $2,500 or $1,250.He further alleged that Dudley offered to pay him only $750 which he refused to accept.Appellant answered with a general denial and specifically pleaded accord and satisfaction.Trial before the court sitting as a jury resulted in a judgment in favor of appellee, Adams.This appeal followed.

For reversal appellant relies on the following points: '1.The evidence was insufficient to sustain the judgment; 2.There was accord and satisfaction, compromise and settlement or novation; 3.The deposition of Roy Garris should not have been considered.'

Considering the third point above first, it appears from the record that the deposition complained of was read and admitted at the trial without objection, therefore, any objection now comes too late.

Primarily, points 1 and 2 are questions of fact.Under our long standing rule of procedure the duty rests upon the jury, or the trial court sitting as a jury, to determine from all the evidence presented whether the preponderance thereof supports the plaintiff[appellee here] or the defendant[appellant].When the cause reaches us on appeal we do not concern ourselves with determining where the preponderance of the evidence lay but only whether there was any substantial evidence to support the verdict and judgment rendered.In other words, if we find any substantial evidence to support the verdict we must affirm, even though it might appear to us that the preponderance was against the verdict.The testimony was in sharp conflict, however, after a careful review of it all, we cannot say the evidence on behalf of appellee when given its strongest probative force, as we must, was not substantial, and, therefore, the judgment must be affirmed, Humphries v. Kendall, 195 Ark. 45, 111 S.W.2d 492.

Appellee's testimony was to the following effect.About December 1, 1954, appellant called him, Adams, to his office and told him that he, Dudley, was employed by E. L. Garris, in a tort action, on a contract for a fee of 50% of the recovery; that he wanted me to assist him in the matter and he would divide any fee that might subsequently be paid in the case, and that he, Adams, accepted the employment.He further testified that after considerable work and effort on the part of Mr. Dudley and himself, offers and counter-offers by the parties, a settlement for $5,000 was finally agreed upon before a trial of the case.That a draft for $5,000 in settlement was sent to him [Adams] and he so informed Dudley.Shortly thereafter Dudley telephoned Adams to bring the draft over that Garris was in his office.Appellee further testified: 'Denver [Dudley] came back, Roy was not within him, never did come back.When Denver walked in the door he motioned me in his inner office, I had been in the outer office.He went in, sat in a chair, I sat in a chair in front of the desk.He got his checkbook out, put it on the desk, leaned back, said finally, 'Hard Case.'Said finally, 'Hard Case, if we had tried it we might have gotten a lot more money out of this thing.Now, since you and I did not have any fee arrangement, I think $750 would be about right.'I was amazed, looked at Mr. Dudley, I said, 'Denver, that was not the way it was.We agreed when I came in the case, any fee received would be divided 50-50.'Sat and looked at each other for five seconds.Not another word was spoken.Denver wrote a check, handed it to me.I looked at it, amount of the check was $750.00.Also noted there was no notation on the check 'payment in full' nor had any oral import.I was mad, concluded there was only one of two things to do; one, get in a fight with Mr. Dudley; or, get up and walk out.* * * I got up, walked out, not a word was spoken.Since there was no oral or verbal...