Holloway v. Bradshaw

• Decision Date: 26 June 1920
• Docket Number: No. 13398.,13398.
• Citation: 223 S.W. 968
• Parties: HOLLOWAY v. BRADSHAW.
• Court: Missouri Court of Appeals

223 S.W. 968

HOLLOWAY v. BRADSHAW.

No. 13398.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Suit by Russel E. Holloway against J. I. Bradshaw. Judgment for defendant, and plaintiff appeals. Affirmed.

D. C. Anderson and Russell E. Holloway, both of Columbia, for appellant.

Gillespy & Boggs, of Columbia, for respondent.

BLAND, J.

This is a suit for an attorney's fee. There was a verdict for defendant, and plaintiff has appealed.

The facts show that one Grider was the owner of a farm near Claysville, Boone county, Mo., and that defendant was the owner of real estate in Jefferson City, Mo. Defendant and Grider traded their respective properties; defendant agreeing to pay Grider $1,500 in addition to conveying his property. The deeds and money were deposited in escrow in the Bank of Hartsburg, Boone county, Mo. Grider took possession of the Jefferson City property, and defendant had possession of the farm. Before the deeds had been delivered, Grider became dissatisfied with the deal, and demanded of the Bank of Hartsburg that it return to him his deed, stating that he had decided that he was not going to complete the trade. About this time Grider began to sow a crop of oats on the farm. The bank refused to return the deed. Some time thereafter defendant, in company with one Tremaine, came to Columbia to consult Mr. Gentry, an attorney, in reference to requiring Grider to perform his agreement; but Mr. Gentry was not in town. Tremaine then suggested to the defendant, "Why not see Mr. Holloway?" who was in the same building, and defendant answered, "Well, I had not thought about him." "Do you reckon he would charge me for a question?" Tremaine answered that he did not think plaintiff would charge defendant for telling him whether he could get the deed to the farm. They then went into plaintiff's office, and defendant said to him that "he did not know but he might have to have a lawsuit, and that it would be best to speak to an attorney." Defendant explained the matter to plaintiff, and the latter said that "he would not make any charge for that, and he thought he could get my deed." Plaintiff told defendant that he thought it would be better not to have a lawsuit, if possible, and defendant said that he did not want a lawsuit, but that "he wanted to find out if he had to have a lawsuit," and `if there was a chance of making him trade." Plaintiff then said that he would call up the bank, and tell the cashier "not to let the deed go out to Mr. Grider." Defendant replied, "That is not necessary." The cashier had already told defendant that he would not let Grider have the deed, but it seems that plaintiff called up the cashier anyway, and told them to hold the deed. Plaintiff suggested that he would go to see Grider in reference to the matter, but defendant, on learning the cost, did not want this done. Plaintiff then stated he would write a letter, and "it would not cost much," and defendant replied that he would pay him for writing the. letter. Defendant testified:

"I never employed him as an attorney, and I told him, if I needed a lawyer, I would let him know later, and he said to let him know later."

When defendant started to go, he told plaintiff that, if it became necessary to have a lawsuit, he would come to see him, or let him know; "that he would give plaintiff first chance at it." Afterwards defendant told the cashier of the bank that he had been to Columbia, and had seen plaintiff, an attorney, and had talked to him, and that plaintiff was "under the impression that he could straighten the affair out all right." However, the cashier did not testify that defendant said that he had employed plaintiff as an attorney. After defendant left his office, plaintiff wrote a letter to Grider, stating that defendant had employed him as an attorney in the matter, and that defendant had asked him to write to' Grider, giving the latter an opportunity of settling up the matter without having to resort to a lawsuit, and had instructed him to institute proper legal proceedings unless the matter was closed up immediately. About five days thereafter defendant and Grider settled their differences by defendant paying Grider the sum of $28 for pasturage and back taxes, and the transaction was closed. At that time defendant wrote plaintiff, saying,

"I wish to ask you what I owe you for what you have done. Let me know, and I will pay you, and oblige."

Plaintiff then wrote the defendant that his fee was $25. Defendant refused to pay this amount, and plaintiff brought this suit to recover the same.

Plaintiff contends that the court erred in refusing to instruct the jury to find for him. Plaintiff sued on the theory that he was employed as an attorney, and he claims that under the undisputed evidence the verdict should have been for him. In this connection plaintiff argues that it is the nature of the services rendered that creates the relationship of attorney and client, rather than the opinion of witnesses as to whether or not this relationship was created. If the issue at the trial had been whether or not there was an implied contract of employment as an attorney, another matter might be presented; but defendant claimed that there was an express agreement as to what plaintiff was employed to do, and that the agreement and understanding was that plaintiff was not employed as an attorney, but merely to write a letter. Of course, plainti...