Fein v. Schwartz, 31772
| Decision Date | 15 March 1966 |
| Docket Number | No. 31772,31772 |
| Parties | Fannie FEIN (Plaintiff) Appellant, v. Edward K. SCHWARTZ and Burnett Schwartz, (Defendants) Respondents. |
| Court | Missouri Court of Appeals |
Newmark & Baris, Irl B. Baris, St. Louis, for appellant.
H. Jackson Daniel, St. Louis, for respondents.
Appellant herein, Fannie Fein, had been the owner of a parcel of improved real estate known as the Midtown Hotel located at 2935 Lawton Avenue in the City of St. Louis, Missouri. This property was in the Mill Creek Redevelopment Project Area being redeveloped by the Land Clearance for Redevelopment Authority of the City of St. Louis, a municipal corporation, which we shall hereinafter refer to as the Authority. The Authority agreed to purchase appellant's property for the sum of $292,000 and at the time of the closing of the purchase contract and of the transfer of title the Authority withheld $15,000 of the purchase price as a result of service on it of a notice of an attorney's lien claimed by the respondents herein, wherein they claimed an interest in the proceeds of the sale. Appellant brought suit against the Authority to recover the sum of $15,000, which the Authority had refused to pay her, and thereupon the Authority interpleaded the sum of $15,000 and paid it into the registry of the court and was thereafter discharged from the suit. Respondents herein, Edward K. Schwartz and Burnett Schwartz, attorneys at law, through their answer and interplea claimed an attorney's lien upon the aforesaid sum by reason of a verbal contract, wherein appellant and her husband agreed to pay the said respondents as professional fees for their legal services an amount equal to five percent of the price received resulting from the sale to or condemnation by the Authority of the aforesaid premises. Respondents' answer and interplea was in two counts. Count I sought recovery under the aforesaid contract for an amount equal to five percent of the price resulting from the sale of the named premises and for an order and judgment that respondents were entitled to an attorney's lien upon the fund paid into the registry of the court. Respondents also sought an order from the court, under Count I, directing the payment of said fund to them. As an alternative to the relief sought in Count I, respondents sought relief in Count II upon the theory of quantum meruit and asked judgment for the sum of $15,000.
Appellant filed a reply and counterclaim. The case was tried in an equity division of the St. Louis Circuit Court without the aid of a jury. The trial court found in favor of the respondents under Count I in the sum of $14,600 and decreed that respondents 'have a special attorney's lien in said amount on and against the funds heretofore paid into the registry of this court,' and directed the Clerk of the Court to pay the sum of $14,600 to the respondents our of the sum deposited in the court and directed that the balance of said deposit be paid over unto the appellant. Thereafter, appellant appealed to this court.
The trial court in its judgment and decree dismissed Count II of respondents' answer and interplea and dismissed appellant's counterclaim. No points have been raised in connection with the court's action in dismissing the two aforesaid pleadings and our review will be limited to the court's findings, judgment and decree in connection with Count I of respondents' answer and interplea.
In the principal point relied on by the appellant she asserts the trial court erred in deciding that respondents were entitled to assert an attorney's lien. As we have pointed out, this proceeding was tried on the equity said of the court and in an equity action we review the case upon both the law and the evidence and determine the credibility, weight and value of the oral testimony and other evidence in the case, but in doing so we give due deference to the trial chancellor's findings as evidenced by its decree and do not set aside the judgment unless it is clearly erroneous. Long v. Kyte, Mo., 340 S.W.2d 623, 628; Section 510.310 subd. 4, RSMo 1949, V.A.M.S Respondents herein are attorneys at law and respondent, Edward K. Schwartz, at the time of his testimony had been in the active practice of the law for forty years and respondent, Burnett Schwartz, a son of Edward K. Schwartz, had been a practicing attorney since December 1949 and was associated with his father.
The pertinent evidence introduced by these respondents tended to show that Edward K. Schwartz had performed legal services for Albert Fein, husband of the appellant, for a period of approximately 25 years and, in addition, maintained a business relationship with him at intervals. After Burnett Schwartz joined his father in the practice of the law, the son began to handle the legal matters for Albert Fein and, in time, performed virtually all of the services pertaining to the legal matters of Albert Fein and his wife, the appellant.
The record in this case is voluminous and a considerable part of the record is devoted to an itemization of the legal services rendered to Albert Fein, Fannie Fein, appellant herein, and the corporation in which both were interested. No useful purpose would be served in detailing the nature of the services that were not connected with the matter in which the present lawsuit is concerned, but it is sufficient to say that the services were more or less continuous over a period of 25 years prior to the trial and, as stated by Burnett Schwartz, the number of matters handled by them 'would run into the hundreds' if those of a minor nature were included. The record indicates that matters of greater importance, handled by the respondents, numbered approximately 25 and that the largest single fee received by them for any one matter was $1000.
In all matters in which appellant was concerned individually or in which she had an interest in a corporate matter, she was represented by her husband, Albert Fein. It appears that in all matters in which appellant was the party in interest the handling of her legal matters was exclusively in the hands of her husband, Albert Fein. Respondents read into evidence as admissions against interest testimony of the appellant, Fannie Fein, contained in her deposition. In this testimony she admitted that respondents had represented her in the past and when her attention was directed to the Authority's preliminary inquiry about taking the Midtown Hotel property, she answered: 'My husband really handled these things.' She was asked, 'Did you, yourself, negotiate with anyone about the condemnation or sale of the Midland (sic) Hotel?' and she answered, 'No.' She was asked, 'Was that all handled by your husband' and she answered, 'Right.'
Respondents knew that the property located at 2935 Lawton Avenue Referred to in the trial of the case as Midtown Hotel property, was in an area contemplated for redevelopment by the Authority and in the early part of 1956 the subject of the possible condemnation of this property came up for discussion between them and Mr. Fein, husband of the appellant, and the possible condemnation of this property came up frequently in discussions thereafter. When respondents would discuss the matter of legal fees with Mr. Fein in regard to other matters they were handling, he told them to wait until the hotel property was sold at which time they would be paid a good fee.
In March of 1958 when it appeared that the Authority would appoint appraisers to establish values for the property to be taken in the Mill Creek Project Area, Mr. Fein again brought up the subject matter with the respondents. Respondents had many discussions in their office and over the telephone with Mr. Fein with regard to the possible condemnation or the acquisition of the property by the Authority. On an occasion during March of 1958, when one of these discussions was taking place as to the future of the Midtown Hotel property, the subject of fees again came up for discussion, after Mr. Fein told respondents he wanted them to get busy on the matter immediately. There followed a discussion as to the fee and the respondents told Mr. Fein that they would offer their services until the property was taken by condemnation or a deal was made for its acquisition by the Authority 'for a fee of five percent of the total amount that was finally paid for the property,' whether it was as a 'result of negotiation or if they (the Authority) got it by litigation * * *.' Mr. Fein told them it sounded like a fair deal and that he preferred it that (contingent) way and again told respondents to get started on the matter immediately.
Thereafter, both respondents made a trip to see Mr. Arthur Schneider, who was engaged in the real estate business, for the purpose of having him act as an appraiser of the property in the event an appraisal was needed. They learned that Mr. Schneider was employed by the Authority, which precluded him from doing any appraisal work for the respondents in behalf of appellant. They learned from him that the appraiser for the Midtown Hotel property would be Mr. McReynolds. Mr. Schneider volunteered to give them advice on what matters should be brought to the attention of the appraiser and in response to this offer respondent, Burnett Schwartz, visited Mr. Schneider on two additional occasions for the purpose of obtaining this advice. Thereafter, respondents contacted Mr. McReynolds and in response to his suggestion, wrote him a letter on May 22, 1958, wherein they detailed data and information concerning rentals on the Midtown Hotel property, the circumstances of a prior lease, insurance, option to purchase and the amount of a first deed of trust that had been placed on the property. This letter also contained information showing that $153,000 had been expended in improving the...
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