Hazeltine v. Brockway

• Decision Date: 19 June 1899
• Parties: HAZELTINE v. BROCKWAY.
• Court: Colorado Supreme Court

57 P. 1077

26 Colo. 291

HAZELTINE v. BROCKWAY.

Supreme Court of Colorado

June 19, 1899

Appeal from district court, Arapahoe county.

Action by John P. Brockway against George Hazeltine. From a judgment for plaintiff, defendant appeals. Affirmed.

The appellee, as plaintiff below, instituted this action in the district court of Arapahoe county to recover from appellant who was the defendant below, compensation for legal services. For cause of action he, in substance, avers: That in the year 1888 he was a duly-licensed attorney at law, and was employed by the defendant to collect the amount of five $1,000 bonds theretofore issued by the Silverton Water Company, and secured by a trust deed; the value of which bonds, and the existence of said trust deed as a lien, having been destroyed by a judgment rendered in a certain proceeding in the district court of San Juan county. That he accepted the employment as such attorney, and it was then and there agreed by and between him and the defendant that the plaintiff was to undertake to protect the rights of the defendant in respect to the bonds, and to recover the amount due or to become due thereon, and that no charge was to be made against defendant, either for expenses or attorney fees, but that the plaintiff should rely upon and look for his fees to the proceeds of results of the suit, and that out of the money or property received by virtue of such suits as the plaintiff should find necessary to begin or carry on, or any compromise or settlement that might be made between the parties plaintiff should be entitled to receive a reasonable and just compensation for his time and labor in conducting such litigation. That from the year 1888 to August, 1895, he continuously conducted and carried on for the defendant various suits and proceedings, so that in the year 1895 a judgment and decree was entered in the district court of San Juan county fully protecting the rights and interests of defendant. That thereafter a compromise and settlement were made between the plaintiff, by and with the consent of defendant, and the parties claiming adversely to him, by which he was to receive $5,000, par value, of the capital stock of the Silverton Water Company, and also a certain amount of dividends thereafter to be paid by that company amounting to $2,393.60, and also a certain proportion of the sum of $1,000 allowed for attorney's fees in said settlement. That thereafter, in pursuance of said compromise a certificate of stock for 50 shares, of the par value of $5,000, was made out and issued in the name of defendant, and delivered to plaintiff, as his attorney, and at the same time the sum of $833.20 was paid to plaintiff as a part of said dividends. That, upon the receipt of the stock and money, plaintiff notified the defendant, and demanded an accounting and settlement from him, and his due proportion of the proceeds of such settlement, as had been agreed. Avers that a reasonable and just compensation for the services rendered defendant was at least the sum of $3,500; that he demanded of defendant the payment of said sum out of the proceeds of the compromise, and that defendant refused to pay him anything whatsoever for the work and services rendered, and still refuses to permit said plaintiff to receive or enjoy and portion of the proceeds of said stock and dividends. Prays judgment against the defendant for the sum of $3,500, and also decreeing and establishing a lien therefor upon the stock and dividends in his hands. Defendant, answering, denied the employment of plaintiff, and that the relation of attorney and client was at any time created in respect to the bonds in question, or their proceeds; admits that, shortly after the plaintiff had received the stock and money, he demanded one-half of the same, which demand he absolutely refused to recognize or allow to any extent whatever. The cause was tried to the court, and resulted in a finding in favor of plaintiff, and judgment against defendant for $3,500, and that he was entitled to an attorney's lien upon the stock and dividends; adjudged that the amount of dividends should be credited upon the judgment, and ordered and adjudged that the plaintiff pay the balance on said judgment within 30 days; and, upon his failure to do so, decreed that the lien be foreclosed upon the stock, and the same, or so much thereof as necessary, sold to satisfy the judgment. To reverse this judgment, defendant prosecutes this appeal.

John R. Smith, for appellant.

H. E. Luthe and John P. Brockway, for appellee.

GODDARD, J. (after stating the facts).

1. The principal ground relied on for reversal is that the judgment is wholly unwarranted by the pleadings and proof; that the averments of the complaint and the testimony of plaintiff show that the employment, if there was any, was upon the express condition that there should be no personal liability upon the part of defendant, but that plaintiff should look solely to the proceeds recovered for his compensation. Therefore the only relief to which he was entitled was to subject the proceeds, or so much thereof as were...