Evans v. Hardin
| Decision Date | 23 December 1940 |
| Docket Number | 34381 |
| Citation | 190 Miss. 299,199 So. 308 |
| Court | Mississippi Supreme Court |
| Parties | EVANS et al. v. HARDIN et al |
Suggestion Of Error Overruled, February 10, 1941.
See 200 So. 125.
APPEAL from the chancery court of Calhoun county, HON. L. A. SMITH SR., Chancellor.
Suit by W. J. Evans and W. I. Stone against Dr. J. A. Hardin and Mrs Willie B. Hardin, to recover compensation for legal services rendered on behalf of defendants. From decree entered, the plaintiffs appeal. Affirmed.
On suggestion of error. Suggestion overruled.
Affirmed. Overruled.
W. I. Stone, of Coffeeville, and W. J. Evans, of Calhoun City, for appellants.
When we have a contract for twenty-five per cent of "Whatever is received in this suit, that is, whether it be land or personalty or money or credit on indebtedness, that is, anything recovered by this suit, " it is just as much a part of recovery in this suit when we have acquitted Dr. Hardin and his wife of a debt and judgment of $ 10, 916, as it is to clear the land or to absolve the life insurance policy of the false claims of the Bank.
Hardin received not only his land, cleared not only of debts but cloud of claims of the creatures of the Bank, but he received the cancellation of the judgment of $ 10, 916 and also his policy and no one of the three items stands higher than the other.
The contract should be interpreted as it is written without anybody having any burden on account of having prepared the contract, or on account of the fact that the contract contemplated the employment of appellants as attorneys.
Release from liability constitutes recovery as completely as though Hardin acquired in that litigation an equal amount of money in some other way.
Saulsberry v. American Vulcanizing Fiber Co., 91 A. 536.
Under the facts in this case and the terms of the contract in question we are unable to see where the recovery of the land and insurance policy was merely an incident to the cancellation of the indebtedness or the cancellation of the indebtedness an incident to the recovery of the land and insurance policy, as in this particular case all three stood on equal footing with each other. It is entirely different from the proposition of the recovery of a judgment for a certain amount and cost of suit, which cost, of course, would be an incident to the recovery of the judgment. But in case it should be said that the land and insurance policy were only an incident to the recovery of a sufficient amount of usury to cancel the indebtedness, then certainly the cancellation of the indebtedness would be the main and primary recovery and under the terms of the contract we should certainly be allowed the 25%, of that recovery regardless of whether or not we were entitled to recover anything on the land and insurance policy. We are at a loss to understand why a trial court could elect to allow us 25% on property recovered and not the indebtedness, especially so where the court was assuming that the property recovered was still live security for the indebtedness, which of course was not true in this case.
Patterson & Patterson, of Calhoun City, and R. F. Kimmons, of Water Valley, for appellees.
The entire contract must be considered and its meaning determined from the entire contract.
Lampkin v. Heard, 137 Miss. 523; Continental Casualty Co. v. Pierce, 170 Miss. 67.
The main purpose of the parties was the release of the lands of the appellees from the lien claimed by the Grenada Bank. This is stated four different times in the contract itself.
This is the first time so far as known that the property securing a debt and the debt itself is considered separate and distinct. The security stands or falls with the debt secured. The payment of a debt extinguishes the security therefor.
Secs. 2152 and 2313, Code of 1930.
It will be noticed that the appellants were to have 25% of whatever, "Received in this suit, that is, whether it be land or personalty or money or credit on indebtedness; that is, anything recovered by this suit."
The disjunctive is used in describing what is to be received. At that time it was unknown what would be recovered. They were seeking to recover the land, and in order to do this it was necessary to show that there was no debt and it was possible, if not probable, that the entire debt could not be shown to have been paid.
When we consider the meaning of the word "recover" the contract on which this suit is brought does not justify the claim of appellants. The word "recover" means "to get or obtain again; to get renewed possession of; to win back; to regain."
7 Words and Phrases, 1st Series, "recover and recovery;" Atchison v. City of Owensboro (Ky.), 71 S.W. 864, 865; Fisher v. Mylius, 42 W.Va. 638; Leslie v. York, 112 Ky. 712.
The contract was prepared by appellants, who were learned in the law, and they were dealing with a client who had confidence in them, and certainly under such circumstances that interpretation of the contract most favorable to Dr. Hardin will be adopted by the courts.
Fitzpatrick v. Kellner, 187 Miss. 843, 193 So. 911.
Argued orally by W. I. Stone, for appellants.
As compensation for legal services rendered on behalf of Dr. J A. Hardin and wife in the case of Hardin et al. v. Grenada Bank et al., reported in 182 Miss. 689, 180 So. 805, wherein the validity of the foreclosure sale of 9011/4 acres of land under a renewal deed of trust held by the bank was challenged on the ground that the Hardins were not indebted to the said bank, either at the time of such renewal or when the sale was made, the appellants in the present suit were to receive a cash fee of $ 700 and also 25% of whatever amount was received on behalf of the Hardins in their suit against the Grenada Bank, "whether it be land, or personalty, or money, or credit on indebtedness; that is, anything recovered by the suit from this day (meaning the date of the execution of the written contract of employment in that behalf) forward, whether by compromise or by litigation in the courts . . ." The appellants were employed as such attorneys and the contract was executed while the lands were being advertised for sale, and the parties thereto all fully understood that the Hardins would be unable to enjoin the trustee's sale because of their inability to furnish the necessary injunction bond for that purpose. It was therefore realized that the sale, seeking to collect an alleged indebtedness of approximately $ 12, 000, would be conducted by the trustee according to schedule, but it was contemplated that those in attendance at the sale would be notified that there was no indebtedness due under the deed of trust to the holder thereof and that the purchaser at the sale would acquire no title. This was accordingly done, and thereafter the suit was filed to set aside the trustee's sale on the ground that the note and deed of trust represented a renewal of an alleged balance on an original loan of $ 45, 000 on which it was alleged that large sums of money collected by the bank as interest over a period of several years was usurious, and would be applied by operation of law to payment of the principal so as to leave no indebtedness due and owing under the deed of trust which was foreclosed as aforesaid. The defendant bank filed its answer, denying the allegations of the bill of complaint, and incorporated therein a crossbill wherein it sought to recover $ 10, 916.77 as a balance due under the deed of trust, after allowing a credit of $ 1, 200 which was bid for the land by a nominal purchaser for the benefit of the bank at the trustee's sale. The case was referred to a master for hearing, and...
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