Graeber v. McMullin

• Decision Date: 13 April 1932
• Docket Number: 495.,No. 471,471
• Citation: 56 F.2d 497
• Parties: GRAEBER et al. v. McMULLIN. MARTIN v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

56 F.2d 497 (1932)

GRAEBER et al. v. McMULLIN.

MARTIN v. SAME.

Nos. 471, 495.

Circuit Court of Appeals, Tenth Circuit.

February 23, 1932.

Rehearing Denied April 13, 1932.

Edwin H. Park, of Denver, Colo., for appellants Graeber and another.

Albert L. Vogl, of Denver, Colo., for appellant Martin.

John F. Mail, of Denver, Colo., for appellee.

Before COTTERAL and PHILLIPS, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge.

The records in the above-entitled cases disclose that they were tried together in the court below. They were decided by that court upon the same evidence. The transcripts of the evidence in the records of the cases in this court are identical. Martin, the appellant in case No. 495, deraigns his title from Graeber, one of the appellants in case No. 471. This is also true of Latta, the other appellant in No. 471. The two cases are controlled by the same legal principles and may be, and for convenience will be, disposed of by one opinion in this court.

The matters and transactions leading up to the suits are as follows: Bentley M. McMullin, appellee, is an attorney at law practicing his profession at Denver, Colo. On January 28, 1927, he and R. F. Graeber, one of the appellants, entered into the following agreement: "It is hereby agreed between R. F. Graeber and Bentley M. McMullin that the said Bentley M. McMullin is hereby employed as the attorney of R. F. Graeber to prosecute and collect a claim which R. F. Graeber has against the United States Mining Corporation for commissions due for the sale of stock of said company, which the said Bentley M. McMullin agrees to do with due diligence; in consideration of which the said R. F. Graeber agrees to pay Bentley M. McMullin a fee of two hundred fifty dollars cash retainer and in addition the sum of twenty-five per cent. of all sums collected from said company if collected without suit and if collected by court action then forty per cent. thereof, in full for all services heretofore and hereafter performed, in connection therewith."

The claim of Graeber against the United States Mining Corporation was submitted to arbitration, and on May 21, 1927, a judgment on the award of the arbitrator was entered in the state court of the city and county of Denver in favor of Graeber and against the United States Mining Corporation for the sum of $89,822.18. A transcript of this judgment was filed in the records of San Juan county, Colo. McMullin also filed notices of claim of lien on the judgment for his fees, one with the clerk of the court in Denver and one in the records of San Juan county, pursuant to and in conformity with the statutes of the state of Colorado relating to attorney's liens. Later an execution was issued on the judgment and four groups of mining claims were in November, 1927, sold by the sheriff of San Juan county as the property of the United States Mining Corporation. The mining claims were bid in by Graeber, the plaintiff in the suit, for the sum of $75,000. Three of these groups had been previously sold on execution by the sheriff and conveyed by him to one Edna Carpenter. Prior to the sale by the sheriff in November when Graeber bid in the groups of claims for $75,000, he had acquired the Carpenter title. It appears that one E. C. Condit and others associated with him claimed some interest in some or all of these four groups of mining claims. McMullin, after obtaining judgment for Graeber against the United States Mining Corporation, began an active campaign to adjust the conflicting interests of the parties interested in or claiming interests in these mining properties. The details of his efforts to this end need not be stated. Suffice it to say that in May, 1928, Graeber, as the fruits of his judgment against the United States Mining Corporation, had good title to the Toltec group of claims, being one of the four sold on execution and bid in by him the previous November. In the adjustments through which he secured title to this group he released all claim to the other three groups. On February 8, 1928, and while the negotiations which were consummated in May were still pending, Graeber wrote McMullin the following letter: "I hand you herewith a special warranty deed to a two-fifths interest in the Toltec group of mining claims in San Juan County, Colorado, recently acquired by me under my judgment against the United States Mining Corporation, upon which you have an attorney's lien, under the contract existing between us, for forty per cent. thereof. The inclosed deed is given to you as security for that lien, and not in extinguishment thereof, it being my intention that said lien shall remain in full force and effect until all matters connected with said company have been finally determined and settled, and until said lien has been formally released."

At some time prior to the commencement of these suits in the court below Graeber conveyed a six-tenths interest in two of the claims of the Toltec group to Martin, the plaintiff in case No. 495, and also an undisclosed part of his remaining six-tenths interest in the remaining claims of the Toltec group to Latta, coappellant with Graeber in case No. 471.

On November 2, 1929, these suits were commenced in the court below to quiet the title of the respective plaintiffs in the respective claims of the Toltec group as they were severally interested. Martin alleged a six-tenths interest in two of the claims of the Toltec group; Graeber and Latta alleged a six-tenths interest in the remaining claims of said group. McMullin and others were named as defendants. In his answer McMullin asserted an interest in the six-tenths interest claimed by the respective plaintiffs in the said mining claims and alleged that he held an attorney's lien on said claims for the fees stipulated in the contract with Graeber of January 28, 1927. The trial court sustained this plea and entered judgment dismissing both complaints and adjudged in each case that McMullin's "attorney's lien on said property to the extent of forty per cent. (40%) of Eighty-nine Thousand, Eight Hundred Twenty-two and 18/100 ($89,822.18) Dollars, together with interest thereon from the 21st day of May, 1927, at the rate of 8% per annum, said last named date being the date of the judgment on which lien is attached, is valid and subsisting and undischarged."

Appellee, in his brief filed in case No. 471, says:

"The crux of the matter, it seems to me, is the letter of February 8, 1928, written by R. F. Graeber contemporaneously with and accompanying the deed of that date conveying to appellee the 2/5 or 4/10 interest in the property. This letter appears at page 23 of the printed transcript of the record, and states that the deed of that date is given as security for the lien and not in extinguishment thereof, etc.

"No explanation of this letter was offered, nor can I find anything in the record which could be construed as in any way controverting the language of the letter or leading to the conclusion that the letter means otherwise than just what it says.

"I do not deem it necessary to controvert or discuss the propositions of law announced by appellants in their brief. These propositions of law are all correct, but, owing to the letter above discussed, seem to me to be entirely inapplicable here.

"Appellants, at pages 5 to 8 of their brief, discuss the proposition that there was no notice or suit to establish the lien; but, Graeber at all times and in all of his dealings in relation thereto recognized this lien. Hence, I cannot see that this formality or informality could be of any concern.

"At pages 8 to 13 of their brief appellants discuss the proposition that by accepting the deed of February 8, 1928, the appellee waived his lien; but, Graeber, by his letter of even date therewith, says that the deed was given as security for the lien and not in extinguishment thereof.

"At pages 13 and 14 of their brief the appellants discuss the proposition of the amount of the lien and other security; but, again, when we read the letter of February 8, 1928, it would seem that all of these questions are foreclosed and settled by that letter.

"So that, admitting every proposition of law announced by the appellants to be incontrovertible, we come back to the letter, and that makes them all inapplicable to the case at bar.

"To conclude, if this Court should hold, as was held below, that this deed and the letter of February 8, 1928, did not discharge the lien, this judgment must stand affirmed; if this Court should take a contrary view, the judgment should be reversed."

This statement is, in effect, repeated in his brief filed in case No. 495. This statement is made with such boldness and assurance that one is almost persuaded to accept it ex cathedra; but is it true that, "if this Court should hold, as was held below, that this deed and the letter of February 8, 1928, did not discharge the lien, this judgment must stand affirmed; if this Court should take a contrary view, the judgment should be reversed"? An analysis of the record, including this letter, persuades that the decision of these cases is not so simple as that stated by appellee. In respect to the deed conveying to him the four-tenths interest in the claims of the Toltec group McMullin as a witness testified:

"Relative to the transaction of February, 1928, in which witness was given a quitclaim deed to two-fifths interest in the Toltec property, stated they held under the agreement of December 17, 1927, an agreement between Graeber, Van Ness and the United Operating Trust, Van Ness had agreed to get the approval of a large percentage of the stockholders of the United States Mining Corporation to the transaction by which Graeber would be allowed the Toltec group of claims upon his judgment. That meeting was held on January 28, 1928, in Denver, and following the meeting, Graeber was preparing to leave Denver and go somewhere in the East. He came to the...