Henry v. Bassett
| Decision Date | 14 June 1886 |
| Parties | LIDE HENRY, EXECUTRIX, ET AL., Respondents, v. CHARLES C. BASSETT, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Bates Circuit Court, HON. J. B. GANTT, Judge.
Affirmed upon condition of remittitur.
Reversed if remittitur is not made in ten days.
Statement of case by the court.
The respondents' testator, A. Henry, filed his petition in the circuit court of Bates county, on the tenth of March 1877, stating that the appellant, C. C. Bassett, on the twenty-ninth of May, 1876, was indebted to him in the sum of $3,500; that on said day, Mount Pleasant township, in Bates county, owed him and appellant seven thousand dollars for legal services theretofore rendered by them jointly, under a contract with said township; that on said day the appellant and the acting chairman of the township board, in and for said township, combined and concluded together to defraud him, said Henry, out of his half of said debt, by calling said township board together, and inducing it to issue to appellant an order on the treasurer of the township for seven thousand dollars, on account of the indebtedness due him said Henry, and appellant jointly; that this was done for the purpose of defrauding him out of his half of said debt; that said order was issued and delivered to appellant; that it bore six per cent. interest from said day; that it was converted by appellant to his own use, and that he failed and refused to pay him, said Henry, any part thereof; wherefore he prayed for judgment, etc.
To this petition the defendant (appellant here) filed answer, denying, specifically, each of the allegations therein contained; and setting out, substantially, that the county court of Bates county had issned ninety thousand dollars in bonds for said Mount Pleasant township; that said county had refused to pay the interest that had accrued on said bonds, in consequence of which the holders thereof had brought suit thereon, in the circuit court of the United States; that said township entered into a contract with them, appellant and said Henry, to appear in the defence of the suits that had been brought, and test the validity of said bonds; that the said contract, by its terms, required them (appellant and said Henry) to appear and defend against the actions brought on said bonds; and that if they complied with said terms, and said bonds were declared invalid, the said sum was to be paid, etc.
The answer further states that, at the time said contract was made, it was distinctly understood and agreed between them that appellant was to take charge of and manage the cases, and that said Henry was to allow him a reasonable compensation therefor, to be deducted from his portion of said fee; and that each was to pay half the expenses actually incurred in that behalf. Appellant further states that he performed much labor and spent a great amount of money and time in performing his duties under said contract; that pursuant to an understanding with one Childs, the supervisor of said township, had at the time they entered into said contract, he employed Glover & Shepley, of St. Louis, to assist in the defence of said suits; that in the case of Harshman v. Bates county, a decision was obtained declaring said bonds void; that thereupon appellant went before the township board, and, in good faith, secured a warrant on the treasurer; that since said warrant was issued and delivered to him, the case of Winter v. Bates County was reversed in the Supreme Court of the United States; that said case was remanded to the lower court; that it has been tried in the latter, and again decided adversely to the county, and that it was thereafter appealed to the Supreme Court of the United States, where it is now pending.
Appellant (defendant in this action) states that said Henry failed, neglected, and refused to comply with any of the terms of said contract with said county; that he never performed any labor whatever in the several suits brought against said county on said bonds; that of the expenses attending said litigation, he paid his proportion of such as were made at the first term of the court, to-wit, forty-seven dollars; that he, thereafter, failed, neglected, and refused, to pay any other or further sum necessarily attending said litigation, and abandoned the contract, and left appellant to comply with the terms thereof, and bear all expenses of said litigation; that said warrant was issued and delivered to appellant because he had performed the labor which was to be performed under said contract; that the expenses paid by him in said litigation aggregated one thousand and five hundred dollars in addition to the two thousand dollars paid Glover & Shepley; that of this sum, said Henry has paid but forty-seven dollars, and failed and refused to pay any more; that after said warrant was issued and delivered to appellant, and he was proceeding to collect it, said Henry, and others, instigated by him, resisted the collection thereof, appellant being one of the plaintiffs in two actions instituted for that purpose, and acting as attorney therein, and claiming that no such contract as he now sets up was entered into by said township, and that any claim under the same was fraudulent and void. That defendant, in defending these injunctions, expended three hundred dollars.
To this answer of appellant, the reply was a general denial. A part of appellant's answer was, on motion, struck out, but the striking out thereof is not assigned as error in his motion for a new trial. Judgment was rendered for Henry for $2,380, and an appeal was granted.
BOGGESS & MOORE, for the appellant.
I. A refusal top ay his proper share of the expense attending the defence of said suits, as and when the same accrued, and when so requested by defendant, was an abandonment of said employment, and of all right to share in the fees therefor. Henry v. Bassett, 75 Mo. 89.
II. As the evidence indisputably proves that the whole of the money specified in said warrant had not been paid, either when the suit was brought, nor at the time of the trial thereof, the suit was prematurely brought.
III. The finding of the court did not embrace all the issues, and is, therefore, erroneous. Frederick v. Logan, 1 Mo. 401; Caldwell v. Stephens, 57 Mo. 589; Barksdale v. Appleby, 23 Mo. 389.
IV. The instructions given on both sides are irreconcilably inconsistent with each other. The finding of facts does not warrant the judgment rendered. Both are inconsistent with the law, as declared by the court, and neither is warranted by the evidence. It cannot be intelligently discerned on what theory the case was determined. Bogarts v. Miller, 63 Mo. 207; Thompson v. Babb, 5 Mo. 384.
V. The only action the testator could properly have brought would have been for an account to have a receiver appointed, etc. Bond v. Bemis, 55 Mo. 524; McKnight v. McCutcheon, 27 Mo. 436; Scott v. Caruth, 50 Mo. 120; Wright v. Jacobs, 61 Mo. 19.
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