Duke v. Harper

• Decision Date: 03 February 1880
• Citation: 8 Mo.App. 296
• Parties: BASIL DUKE ET AL., Appellants, v. ASA HARPER ET AL., Respondents.
• Court: Missouri Court of Appeals

8 Mo.App. 296

BASIL DUKE ET AL., Appellants,

v.ASA HARPER ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 3, 1880.

Where an attorney is employed to recover certain lands, under an agreement that in the event of success he is to receive one-fourth of the lands recovered, and, without his knowledge, his client compromises the suit for a sum bearing no proportion to the value of the land which, in the event of success, would have been recovered, he is not bound to accept one-fourth of the sum received in compromise, but may recover the reasonable value of the services rendered up to the date of the compromise.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.THOROUGHMAN & WARREN, for the appellants: Construction of contracts.-- 2 Pars. on Con. 498; 1 Story on Con., sects. 774, 817; Smith on Con. 508; Metc. on Con. 275. The action is for damages sustained by the wrongful prevention by the defendants of performance of the contract on the part of the plaintiffs; and the measure of damages is the loss actually sustained.--Sedgw. on Dam., top p. 103; White v. Mann, 26 Mo. 361; Peters v. Opie, 1 Vt. 177; Bagley v. Smith, 10 N. Y. 489; Allison v. Chandler, 11 Mich. 542; Park v. Kitchen, 1 Mo. App. 357; Lewis v. Atlas Mutual Life Ins. Co., 61 Mo. 534; 2 Story on Con. (5th ed.), sect. 1335.

MARTIN & LACKLAND, for the respondents: An attorney has no right to compromise or dismiss the cause of his client.-- Walden v. Bolton, 55 Mo. 405; Spear v. Ledergerber, 56 Mo. 465; Semple v. Alkemann, 64 Mo. 504. That right belongs exclusively to the client.

HAYDEN, J., delivered the opinion of the court.

The petition states that the plaintiffs, who were practising lawyers, entered into a contract with the defendants for the recovery of certain real and personal property claimed by the latter. One Eliza Haycraft left by will real and personal estate which she devised and bequeathed to her brother and sisters. In her lifetime she had made deeds of certain property, and after her death these were put upon record by the grantees, who claimed this property adversely to the devisees under the will. The written contract sued on recited these facts, and also that the parties of the first part, defendants here, desired to retain the services of the plaintiffs, of the second part, in the prosecution of the necessary legal proceedings for the recovery of the property covered by the deeds, and other property which one of the grantees, the executor of the estate of Madame Haycraft, had failed to inventory or report. The contract continues:--

“And whereas, further, the said parties of the first part desire to make the compensation to be paid by them to said parties of the second part for their said services wholly conditional and dependent alone upon success, although the parties of the second part have fully acquainted them, the the said parties of the first part, with the facts and circumstances going to prove that said deeds are fictitious and fraudulent, and never in point of fact executed or delivered by the said Eliza Haycraft, and that it is the confident opinion of them, the said parties of the second part, that all the property covered by said deeds can and may be recovered at law against the claimants under said deeds, and that any property belonging to said estate which the executor has not inventoried may likewise be recovered:

Now, therefore, in consideration of the services hereinafter mentioned, to be performed by the parties of the second part, the said parties of the first part hereby contract and agree that they will convey, assign, transfer, pay, and deliver to the said parties of the second part the one-fourth part of their several shares of so much of the property (whether real or personal) mentioned in the premises as may be recovered, whether the same be recovered by suit, compromise, or otherwise, and that they, the said parties of the first part, will make all such deeds, conveyances, and assurances as may be necessary or proper for the conveyance and assurance to said parties of the second part of the interests and shares which it is hereby agreed they shall have. And the parties of the first part further agree that the parties of the second part shall be exclusive judges of what suits and proceedings are necessary or proper for the recovery of the rights of the parties of the first part in the premises.”

The plaintiffs, on their part, agree to prosecute such suits and proceedings as they may deem fit to secure the rights of the defendants in the property in question, to a final determination, “for the compensation so as aforesaid agreed to be paid to them, and that in case nothing is recovered by such suits or proceedings, or by compromise, they will charge nothing for their said services.”

It appeared in evidence that under this contract the plaintiffs had proceeded to conduct the litigation and had rendered services in the prosecution of suits contemplated by the contract, which services were reasonably worth about $6,000; that the real estate involved in the suits was worth some $60,000, and that the interests of the defendants, as they would have been in the event of success in the suits, were worth $36,000. It appeared that the defendants had, without the knowledge or consent of their attorneys, the plaintiffs, compromised the suits and put an end to the litigation; and the plaintiffs offered in evidence three deeds, executed by all the defendants to the adverse claimants, the grantees of Madame Haycraft, conveying the real estate, the consideration-money, as expressed in these deeds, amounting to $225. The court below ruled, first, that the plaintiffs could recover only one-fourth of the $225 expressed as the consideration in the deeds; second, that on a quantum meruerunt, the amount fixed by the contract limited the recovery. There was judgment for the plaintiffs for $69.85, and they appealed.

It is, we think, clear that the contract will not bear the construction put upon it by the trial court. Violence cannot be done to the contract as a whole in order to give effect, especially a strained effect, to a few words. As the contract recites, it was the defendants who were...