Hughes v. Keokuk & Hamilton Bridge Co.
| Decision Date | 19 October 1926 |
| Docket Number | No. 37825.,37825. |
| Citation | 204 Iowa 1229,210 N.W. 451 |
| Court | Iowa Supreme Court |
| Parties | HUGHES v. KEOKUK & HAMILTON BRIDGE CO. |
OPINION TEXT STARTS HERE
Appeal from Superior Court of Keokuk; Wm. S. McNamara, Judge.
Suit to recover for attorney's fees. From a judgment entered on a verdict of the jury in favor of plaintiff, defendant appeals. Reversed.O'Harra, Walker & Sheridan, of Keokuk, for appellant.
B. A. Dolan and E. W. McManus, both of Keokuk, for appellee.
Plaintiff alleges in his petition that the New York Trust Company had brought suit in the district court of the United States in and for the Southern District of Iowa, Eastern Division, for judgment and foreclosure of a mortgage and the appointment of a receiver and other matters. Plaintiff was employed as counsel to resist and defeat such foreclosure proceedings, if possible, and to care for defendant's legal rights in the premises. He performed said services, and avers that said suit of foreclosure has been abandoned; further says that the corporate character of the defendant had expired, and that through his efforts the Legislature of Iowa passed an amendatory act restoring its corporate rights; that he made a charge for his services of $50,000; “that a compromise was thereafter effected by which defendant agreed to pay plaintiff, and plaintiff agreed to take, $40,000 for all of said services”; that $20,000 had been paid thereon; that defendant neglects and refuses to pay the balance, and plaintiff asks judgment therefor.
The evidence of appellee, and, in fact, the undisputed evidence in the case, shows that, if a compromise were effected in these matters, it was on the basis that appellee was to be paid $10,000 cash and $30,000 in bonds of the defendant company to be issued in the future. The defendants, by way of motion in arrest of judgment, both at the close of plaintiff's testimony and at the close of all the testimony, and at various other times in the proceedings, insist that appellee was not entitled to go to the jury because of a failure of proof; the point being that the compromise testified to by appellee was not the compromise described in the petition. As we are met with this question at the threshold of the case, we will dispose of it first.
[1] The point raised is not a question of variance as referred to in sections 11177 to 11179, Code 1924, but is controlled by section 11180, of said Code, reading as follows:
“When, however, the allegation of the claim or defense to which the proof is directed is unproved in its general...
To continue reading
Request your trial