Ft. Worth & D. C. Ry. Co. v. Carlock & Gillespie

• Decision Date: 03 July 1903
• Citation: 75 S.W. 931
• Parties: FT. WORTH & D. C. RY. CO. v. CARLOCK & GILLESPIE.
• Court: Texas Court of Appeals

75 S.W. 931

FT. WORTH & D. C. RY. CO. v. CARLOCK & GILLESPIE.

Court of Civil Appeals of Texas.

July 3, 1903.

Appeal from Tarrant County Court; R. F. Milam, Judge.

Action by Carlock & Gillespie against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Stanley, Spoonts & Thompson and Marshall Spoonts, for appellant. Carlock & Gillespie, in pro. per.

STEPHENS, J.

E. J. Wynn, who had sustained personal injuries through the negligence of appellant, employed appellees, a firm of lawyers, to collect his claim for damages, the contract of employment reading:

                                  "Ft. Worth, Texas, Feb. 8th, 1902
                

"This agreement between E. J. Wynn and Carlock & Gillespie, witnesseth that the said Wynn has this day employed said Carlock & Gillespie, to collect, by suit or otherwise, a claim against the Fort Worth & Denver City Railway Company for personal injuries to said Wynn, sustained on the 16th day of January, 1902, at Sanborn, Texas, said injury consisting of a crushed knee-cap. In consideration of said services of Carlock & Gillespie in and about said claim the said Wynn hereby agrees to give to said Carlock & Gillespie one half of what may be recovered from said Railway Company, either by suit or otherwise; provided, that if said claim is compromised before suit that said Carlock & Gillespie shall have for their services one fourth of the amount collected.

"To secure said Carlock & Gillespie, I hereby transfer a one half interest in and to said cause of action. It is further agreed and understood that said Wynn is to be at no expense in and about said matter, and that if nothing is recovered on said claim said Carlock & Gillespie are to get nothing for their services, and said claim is not to be compromised without the consent of all parties hereto."

Appellees gave appellant notice of the claim and of their interest in it, and brought suit for Wynn to collect it. Pending this suit appellant paid Wynn $300 in full satisfaction of the claim, and refused to pay appellees any, thing. This suit was consequently brought by them, and resulted in a verdict and judgment in their favor for $150, the court instructing the jury to so find.

Compliant is made of the peremptory instruction upon the ground that the agreement that Wynn was to be "at no expense in and about said matter" made the contract of employment obnoxious to that clause of the act of 1901 which made it a misdemeanor for an attorney at law, in seeking or obtaining employment, to "promise to give, loan or otherwise grant money or other valuable thing to the person from whom such employment is sought before such employment in order to induce such employment." Acts 1901, p. 125. We are inclined to agree with counsel for appellant that the promise of an attorney at law to defray all the expenses incident to the collection of his client's claim for damages, if not a literal promise to pay him money, is at least a promise to give or grant a valuable thing to his client; and such is the construction a statute very similar to our own has recently received in New York in the case of Stedwell v. Hartmann (Sup.) 77 N. Y. Supp. 498; the New York Code (section 74) reading: "An attorney or counselor shall not * * * promise or give or procure to be promised or given a valuable consideration to any person, as an inducement to placing * * * a demand of any kind for the purpose of bringing an action thereon." There can be no substantial difference between a promise to give or grant money or other valuable thing, as denounced in our statute, and a promise to give a valuable consideration, as denounced in the New York Code. In the case above cited arising under the New York Code the question was thus stated and decided: "But the question still remains as to the validity of a contract by which an attorney, in consideration of...