Farmer v. Stillwater Water Company

• Decision Date: 14 May 1909
• Docket Number: 16,073 - (46)
• Citation: 121 N.W. 418,108 Minn. 41
• Parties: HENRY C. FARMER v. STILLWATER WATER COMPANY and Another
• Court: Minnesota Supreme Court

121 N.W. 418

108 Minn. 41

HENRY C. FARMER v. STILLWATER WATER COMPANY and Another

Nos. 16,073 - (46)

Supreme Court of Minnesota

May 14, 1909

Petition of J. C. Nethaway in the district court for Washington county for an order requiring plaintiff and defendants to show cause why petitioner's lien for $15,000 for services to plaintiff in securing a verdict therein should not be established and determined by the court, and for a restraining order forbidding payment of the judgment until petitioner's rights were determined. Upon the direction of the court, pleadings were made and served in the manner provided by law for civil actions and, issues having been joined between the petitioner and the plaintiff the matter came on for trial. The jury having found the written contract was modified by a subsequent oral agreement and having disagreed as to the value of the services, was dismissed and the court found in favor of the petitioner for $11,500, less the sum of $1,035 which had been paid thereon and that petitioner was entitled to a lien for the balance on certain shares of stock in defendant company and certain money to be paid to plaintiff in settlement of plaintiff's verdict against defendant company. From orders denying plaintiff's and defendants' motions for a new trial, Stolberg, J., they appealed. Affirmed.

SYLLABUS

Attorney's Lien.

In 1904, N., an attorney, agreed in writing as to his compensation for services in conducting certain litigation for F. In the action begun and tried, the jury returned a verdict for $21,700. A new trial was granted. On appeal, that order was affirmed. N. refused to perform further services, because he insisted F. had not agreed to pay anything for a second trial. N. testified that F. then agreed to pay him what his services were reasonably worth. Thereupon the complaint in the action was amended, a trial had, and a verdict returned in favor of plaintiff in the sum of $50,000. An appeal taken was argued. Pursuant to an order made upon petition by N., issues were framed to determine the validity and amount of N.'s attorney's lien, notice of which had been duly served. After the jury found that the contract had been modified as claimed by N., but had failed to agree as to the value of his services, the court found as a matter of fact that it had been agreed by F. to pay the reasonable value of N.'s subsequent services, that the value of N.'s services was $11,500, and as conclusions of law that N. was entitled to a lien to that amount, less payments made. It is held:

1. The fact that a verdict had been rendered entitled plaintiff to an attorney's lien. Crowley v. Le Duc, 21 Minn. 412, followed and applied.

2. N. did not waive his lien by agreeing that F. should collect the money on the verdict and pay N. after collection was made.

3. The district court had jurisdiction to entertain the equitable proceedings to enforce the lien, although the action in which the services had been rendered had been settled and dismissed.

4. The fact that the judge who had submitted questions to a jury changed his mind and tried the case himself, because of developments on the trial, was not error in this a case triable by the court.

5. The finding of the trial court that F. agreed with N. to pay what N.'s services were reasonably worth is sustained by the evidence. That oral agreement was not void for want of consideration, constructive fraud, or otherwise.

6. The finding of the trial court as to the value of N.'s services was supported by the testimony.

F. V. Comfort and J. N. Searles, for appellants.

Manwaring & Sullivan, for respondent.

OPINION

JAGGARD, J.

On the thirtieth of August, 1904, J. C. Nethaway, as party of the first part, and H. C. Farmer and Horace Voligny, as parties of the second part, signed this written agreement:

"Witnesseth, that for and in consideration of the sum of two hundred dollars ($200.00), and the further sum hereinafter mentioned, the said John C. Nethaway agrees to immediately commence an action in the district court of Washington county, in favor of said H. C. Farmer and Horace Voligny, and against the Stillwater Water Company, to recover damages for drawing the water off of lot nineteen (19) of block twenty-one (21) of the city of Stillwater, and for commencing that action and for all services thereafter in the district court the said John C. Nethaway is to receive the sum of one hundred dollars ($100.00), fifty dollars ($50.00) being paid upon the execution of this contract, and the balance, fifty dollars ($50.00), to be paid upon the rendition of a verdict in the district court, no matter what that verdict may be; and the said Farmer and Voligny are to pay all costs outside of the attorney's fees incurred in said action, and it is further agreed that, if an appeal is taken to the supreme court in said action by either of the parties thereto, then and in that case the said Nethaway, for his services therein, is to receive the further sum of one hundred dollars ($100.00), said sum to be paid immediately after the argument of the case in the supreme court.

"It is further understood and agreed by the parties hereto that the said Nethaway is to receive the following sums in addition to the said two hundred dollars ($200.00), to wit: If a verdict is obtained in said action in favor of the plaintiffs, the said Nethaway is to receive ten per cent. of the amount recovered up to and including ten thousand dollars ($10,000.00), and five per cent. upon any sums recovered over said ten thousand dollars, and said percentage to be paid when the sum is collected from the defendant, but the two hundred dollars ($200.00) hereinbefore mentioned to be paid as herein-before set forth; and the said Farmer and said Voligny hereby agree to make such payments as hereinbefore stated."

Pursuant to this agreement, the action was commenced by parties of the second part against the Stillwater Water Company for the recovery of $25,000 damages. The action was tried in May, 1905. The jury returned a verdict for $21,700. After some six or eight months' delay, a motion for a new trial was granted. On appeal to this court the decision of the district court was affirmed. Farmer v. Stillwater Water Co., 99 Minn. 119, 108 N.W. 824. Voligny, one of the parties of the second part in the agreement above stated, by order of court ceased to be a party. However, he gave full authority to Farmer, the other party of the second part, to manage the litigation.

Shortly after the case was remanded, and in August, 1906, Nethaway refused to perform any further services in the case. According to Nethaway's testimony, Farmer said: "We will have to amend that complaint and ask for $40,000 or $50,000." Nethaway insisted that his duty under the written contract had been performed; that Farmer had not agreed to pay him anything for a second trial, nor to pay him anything further at all. After some discussion, according to Nethaway, Farmer said: "All right; go ahead, and draw that amended complaint, make your motion, and I will pay you what your services are reasonably worth, in view of what I get out of the case." Thereupon application to amend was made and granted. The case was heard. In due course a verdict was returned in favor of plaintiff Farmer in the sum of $50,000. Motion for a new trial was made by the water company and denied by the trial court. An appeal was taken to this court, argued and submitted in January, 1908. While the appeal was pending, and on the fourteenth of February, 1908, a settlement was made between Farmer and the Stillwater Water Company, providing that the appeal be dismissed within thirty days; that within such time the water company should transfer one hundred shares of capital stock of the company, of the par value of $50 each, and pay or cause to be paid the sum of $9,350; that Farmer should execute a warranty deed to land in which the spring involved in this litigation is situated and protect against Nethaway's attorney's lien.

On the eleventh of January, 1908 -- that is, after the argument in the supreme court and before the settlement -- Nethaway served due notice of attorney's lien for $15,000 on the verdict rendered. Pursuant to an order made upon a petition by Nethaway, issues were framed to determine the validity and amount of that lien. The trial court submitted two questions of fact to a jury. One of these, namely, whether the contract had been modified as claimed by Nethaway, the jury answered in the affirmative. As to the other, namely, what was the value of Nethaway's services, the jury failed to agree. The jury was discharged, and the case set down for hearing. On July 28, 1908, the court filed its findings of fact and conclusions of law. It found, inter alia, that the agreement by Farmer to pay the reasonable value of Nethaway's subsequent services was executed in connection with a dispute as to what he should be paid; that it was orally agreed that each party waived his respective rights and claims under the written contract; that the settlement between Farmer and the water company was made without aid or advice or assistance of Nethaway; that Farmer had paid plaintiff on account of services $1,035; that the value of Nethaway's services was $11,500. As conclusions of law the court found that Nethaway had a lien for $10,465, and other matters not here material. This appeal was taken from the order of the trial court denying motion for a new trial.

1. The first group of the sixty assignments of error is addressed to the proposition that Nethaway under neither the written nor the oral contract had or could have had a lien on the fruits of the litigation.

In the first place, the assignment is: This action was begun prior to the enactment of the Revised Laws of...