German v. Browne & Leeper

• Citation: 39 So. 742,145 Ala. 364
• Parties: GERMAN v. BROWNE & LEEPER ET AL.
• Decision Date: 21 December 1905
• Court: Supreme Court of Alabama

39 So. 742

145 Ala. 364

GERMAN v. BROWNE & LEEPER ET AL.

Supreme Court of Alabama

December 21, 1905

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

"To be officially reported."

Action by Mary L. E. German, as executrix of the estate of Joseph Verchot, deceased. against Browne & Leeper and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Sam Will John, for appellant.

Sydney J. Bowie and C. C. Whitson, for appellees.

DENSON J.

Assumpsit by M. L. E. German, as executrix of the estate of Joseph Verchot, deceased, plaintiff, against Browne & Leeper and Browne & Dryer and the individuals composing the two firms. The only count in the complaint claims of the defendants $2,500 for money had and received by the defendants to the use of the plaintiff on, to wit, the 3d day of July, 1900. The defendants filed eight pleas. The seventh and eighth were disposed of by the court sustaining a demurrer to them. The first three, though differing in form, presented only the general issue. The fourth was a plea of payment, while the fifth and sixth presented set-off and recoupment as a defense. The court gave the affirmative charge, with hypothesis, in favor of the defendants. There was judgment in their favor, and the plaintiff appealed.

There are 12 grounds in the assignment of errors, all of which except the eighth, relate to the court's rulings on the admissibility of evidence. Joseph Verchot employed the defendants as lawyers to institute and conduct a cause for him as complainant in the chancery court of Shelby county against the Alabama Iron & Steel Company and the American Pig Iron Storage Warrant Company, respondents; the purpose of the suit being to collect a debt of $7,000, besides interest that was due Verchot by the Alabama Iron & Steel Company and secured by a pledge of 700 tons of pig iron. During the pendency of the chancery suit Verchot died, and the plaintiff qualified as his executrix. The chancery suit was revived in her name as executrix and prosecuted to a successful termination. The suit in the chancery court was stubbornly litigated for six years. At the termination of the suit there was paid to the firm of Browne & Dryer for their client the sum of $8,580.87. Of this sum they paid taxes due on the iron--the subject-matter of the chancery suit--$114.32. They retained $2,125 out of the amount as a fee for their services, and sent the balance, $6,341.53, to Browne & Leeper at Columbiana. The amount was sent to Browne & Leeper in two checks on the Isbell National Bank at Talladega, in the sums of $3,319.72 and $3,021.83, respectively. The check for $3,021.83 was indorsed by Browne & Leeper to Mrs. German, and she collected it. The check of $3,319.72, was collected by Browne & Leeper. They retained as a fee for their services in the chancery suit the sum of $1,825, and paid the balance $1,444.72, to Mrs. German. Thus the two firms retained of the amount collected for their client the sum of $4,000 as fees, and paid the taxes $114.32, and paid the balance, $4,566 to their client.

The plaintiff, not being satisfied with respect to the amount of fees charged and retained, brought this suit; her contention being that there was no express contract between the defendants and Joseph Verchot as to the amount of compensation for their services rendered in the chancery suit, and in the absence of an express contract fixing the amount the defendants were entitled only to reasonable compensation, and that $4,000 was an unreasonable amount to be retained by them as their compensation. The defendants' contention was that each of their firms had a separate parol contract of employment with Verchot, by which they were, in the event of recovery in the suit by Verchot, to have a reasonable contingent fee, and if there was no recovery they were to receive nothing for their services.

The plaintiff propounded interrogatories to each of the defendants under the statute (section 1850 of the Code of 1896). In the interrogatories was this question: "When and by whom were you employed to conduct a cause in the chancery court of Shelby county against the Alabama Iron & Steel Company, the American Pig Iron Storage Warrant Company, and others?" The defendants Cecil Browne and E. H. Dryer to the question answered substantially that in the summer of 1894 they were employed by Joseph Verchot to institute and conduct a cause in the chancery court in Shelby county against the Alabama Iron & Steel Company, the American Pig Iron Storage Warrant Company, and others for the recovery of certain iron alleged by Verchot to have been fraudulently taken out of his possession, and which was alleged to be in the possession of a receiver of the chancery court of Shelby county. The defendants Browne & Leeper answered that they were employed by Joseph Verchot in May, 1894. These answers on the trial were read in evidence by the plaintiff. The defendants Cecil Browne, W. B. Browne, and J. T. Leeper were introduced as witnesses in their own behalf, and over the objection of the plaintiff that they were incompetent to testify as to any statement by or transaction with Joseph Verchot, now deceased, the court allowed them to testify as to their employment by Verchot and to the terms of the contract of employment as agreed upon by Verchot and them; in other words, to testify to what was said by and agreed to between Verchot and them with respect to the employment. Section 1794 of the Code of 1896 provides that "no person having a pecuniary interest in the result of a suit shall be allowed to testify against the parties to whom his interest is opposed, as to any transaction with or statement by the deceased person whose estate is interested in the result of the suit or proceeding, * * * unless called on to testify thereto by the parties to whom such interest is opposed," etc.

It is now insisted by the appellees, in justification of the court's ruling, that the plaintiff, by introducing in evidence the answers of the defendants to the interrogatories filed to them, called the defendants to testify, and that they having answered that Verchot employed them entitled them, under the exception in the statute and in accordance with the rule that, where a party proves a part of a transaction by a witness, the adverse party is entitled to have the whole transaction from the witness, to give in evidence the entire transaction with Verchot with respect to their employment by him. The plaintiff was not required to introduce the answers of the witnesses in evidence. She could do so or not as she thought might best conserve the interest of her cause. Her adversaries could not have introduced them without her consent. Code 1896, § 1854; Crocker v. Clements, 23 Ala. 296; Marx Bros. v. Leinkauff, 93 Ala. 453, 9 So. 818. She chose to introduce them. We do not hesitate to hold that this was a call within the meaning of the statute by the plaintiff upon the defendants to testify. Thomas v. Thomas, 42 Ala. 120.

The next question is, does the first interrogatory call for, and do the answers thereto involve, a transaction with the deceased. If so, then we cannot withhold our minds from the conclusion that the defendants were entitled to give in evidence the whole transaction or contract after the plaintiff read their answers to the jury. To hold otherwise would be to make the statute in the hands of the plaintiff a sword as well as a shield. Causler...