Elmer v. Flett

• Decision Date: 03 September 1927
• Docket Number: No. 4298.,4298.
• Parties: ELMER v. FLETT
• Court: Missouri Court of Appeals

297 S.W. 985

ELMER v. FLETT

No. 4298.

Springfield Court of Appeals, Missouri.

September 3, 1927.

Appeal from Circuit Court, Dent County; W. E. Barton, Judge.

Action by Wm. P. Elmer against Gussie McRoberts Flett. Judgment for defendant, and plaintiff appeals. Reversed and remand" ed for a new trial.

E. W. Bennett and Wm. P. Elmer, both of Salem, for appellant.

John M. Stephens and Clyde C. Pope, both of Salem, for respondent.

BAILEY, J.

This is an action to recover attorney fees under an alleged contract for services. The petition is in two counts, the first being based on an alleged written contract signed by plaintiff and defendant, and the second on quantum meruit. By his second count, which was the one on which the case was submitted, plaintiff alleges that defendant employed plaintiff as her attorney to perform certain legal services and prosecute her claim for an interest in an estate, as a child and heir of one G. McRoberts; that defendant agreed to pay plaintiff what the services were reasonably worth; that plaintiff performed legal services in establishing defendant's claim, and, after all the conditions of said contract of employment had been performed, defendant repudiated her contract with plaintiff, refused to permit him to perform further services for her or to pay plaintiff for the services rendered; that plaintiff has fully established defendant's claim to the estate amounting to a one-eighteenth interest in an estate of $70,000, or an interest worth $4,000; that plaintiff is entitled to a reasonable attorney fee of 25 per cent. or $1,000, for which judgment is prayed.

The answer contains a denial of all the allegations of plaintiff's petition, except that he is a practicing lawyer. As a further defense it is set up: That plaintiff prepared an instrument of writing designating plaintiff as party of the first part and defendant, her mother, Alda Huff, and five other persons (also heirs to the McRoberts estate) as parties of the second part, by the terms of which instrument the interest of the mother, Alda Huff, was recognized as equal to that of the children. That plaintiff delivered the instrument to defendant's mother, the said Alda Huff, and one Wm. Huff, as plaintiff's agents for the purpose of securing the signatures of the other parties thereto. That plaintiff, by and through said Alda Huff and Wm. Huff, made certain false representations to defendant as follows: (1) That unless she signed she would receive no money from said estate; (2) that Alda Huff was an equal owner in said estate with the children; (3) that the contract would not be binding unless signed by all the parties thereto; (4) that plaintiff was the only person in possession of evidence to establish the claim. That said statements were false and known to be false, or else made without knowledge of their truth of falsity for the purpose of inducing defendant to sign said instrument. That by reason of said false representations defendant did sign the same. That none of the other parties to said instrument placed their signatures thereon, except the said Alda Huff, and by reason thereof the contract was of no force and effect. That upon discovering the fraud defendant promptly notified plaintiff she would not be bound by said written instrument. That plaintiff at all times represented the said Alda Huff, whose interests were antagonistic to defendant's, and all the services performed by him were for Alda Huff and to deprive defendant of as much of said estate as possible. The reply was a general denial of the new matter contained in said answer and a plea that, even if there were fraud in procuring defendant's signature, defendant failed to repudiate the agreement on any such grounds. Upon the Issues thus drawn the jury returned a verdict for defendant and plaintiff has appealed from the judgment entered.

The evidence shows that defendant is a practicing lawyer in Salem, Mo., and has been for more than 30 years. A short time prior to the 3d day of March, 1926, Alda Huff. mother of defendant, and her husband, W. S. Huff, brought to plaintiff's office an advertisement of one W. G. McRoberts of Peoria, Ill., stating that he was seeking for the heirs of Gavinus McRoberts. The Huffs asked plaintiff what he would charge as a fee to investigate the matter and ascertain what they could do towards establishing a claim to the estate, if there was any. After some conversation plaintiff agreed to pay his own expenses in connection with the matter and undertake to establish their claim for a contingent fee of 25 per cent. Thereafter a contract was drawn at the request of the said Alda Huff. This contract purported to be made between plaintiff, as party of the first part, and Alda Huff and Gussie McRoberts Flett (defendant herein) and five other heirs, as parties of the second part, and provided that the said,. party of the first part would undertake to render legal services necessary to establish any claim the parties of the second part might have as the heirs of G. McRoberts; that for said services plaintiff was to be paid 25 per cent. of the amount realized by the parties of the second part; that Alda Huff was to have the same share and interest as any child of the said G. McRoberts; and that no advancement heretofore made should be considered against any of the heirs, but that each child, together with the said Alda Huff; should share equally in any amount realized. This contract was signed by plaintiff, as party of the first part, and Alda Huff and Gussie McRoberts Flett, as parties of the second part; the other five parties thereto refusing to sign. Before the contract was signed, but after the matter had been presented to plaintiff, he answered the advertisement hereto. fore referred to by directing a letter to one W. G. McRoberts, of Peoria, Ill., informing him that he had information as to the heirs of Guss McRoberts. On March 1, 1926, plaintiff received a reply advising that the estate was of considerable magnitude and requesting further information as to the other heirs.. The contract was signed before plaintiff received this reply to his letter from McRoberts. Thereafter plaintiff mailed McRoberts a list of the heirs as called for in his letter. Other correspondence followed and it developed there was little, if any, question as to, defendant and her brothers and sisters being the heirs.

Plaintiff testified that, after this contract was entered into and he had written these letters to W. G. McRoberts, he obtained all the evidence necessary to establish the claim, including certain papers, pictures, marriage certificates, notice of death, etc., and went to Peoria in order to present proofs to the court. Just prior to leaving he heard, but not directly, that defendant did not intend to recognize him as her attorney; that, upon his arrival in Peoria, Mr. McRoberts informed plaintiff that he was attorney for defendant and requested that plaintiff take no part in the trial; that upon his return to Salem he wrote defendant in regard to the matter of his being discharged as her attorney, but received no reply from her, and this suit resulted.

Defendant testified, over plaintiff's objection, that her mother wanted them all to sign the contract and told defendant she would not be bound until all the names were signed; that she did not know what interest her mother had in the estate, but she never used any of the evidence that plaintiff had obtained to prove their case; that Mrs. Huff, informed her that she would share a child's part in the estate.

On cross-examination defendant testified as follows:

"I understood the contract provided my mother would share equally with us children. There wasn't anything in the contract I did not understand. Neither mother or I knew anything about the estate; not a thing in the world. All we knew was the advertisement sent us. I read it about the middle of February. Talked frequently with my mother about it, and we decided it would pay to have somebody investigate it and see whether or not there was an estate. They said they would take it to Mr. Elmer. I didn't tell them not to do it. That was discussed before the contract was signed. I understood Elmer was to get 25 per cent. if they all signed it. Never talked to him about it. There is nothing in the contract about the others signing it; only seven places for the signatures for the others to sign. I didn't authorize the Huffs to take it to Elmer's office."

She further testified on cross-examination as follows:

"Mother told me Elmer had answered the advertisement and got a letter from McRoberts. We talked about the matter frequently. All I knew about the estate was from the clipping and the letters. Mother got her information from Elmer. W. G. McRoberts never knew anything about where we were until Elmer wrote him. Never received any letter from him until Elmer had written him. My feelings were good toward my mother then. Nothing extra now. We didn't know whether anybody was entitled to anything in this estate when the contract was signed. If there was anything for mother, we didn't want to rob her of it; wanted her to share equally if the law required it. The contract said we were to share...