Jenkins v. Clopton.

• Decision Date: 20 July 1909
• Citation: 141 Mo. App. 74,121 S.W. 759
• Parties: JENKINS v. CLOPTON.
• Court: Missouri Court of Appeals

121 S.W. 759

141 Mo. App. 74

JENKINS v. CLOPTON.

St. Louis Court of Appeals. Missouri.

July 20, 1909.

1. EVIDENCE (§ 317) — HEARSAY.

Testimony by plaintiff, offered to prove that defendant agreed to collect a fund belonging to an estate for 10 per cent. thereof, that plaintiff's uncle told him of defendant's proposition to another heir to collect for 10 per cent. and that the speaker had also contracted with defendant on the same basis, and that plaintiff told his uncle that that was his understanding of the contract, was mostly hearsay.

2. MONEY RECEIVED (§ 19) — DEFENSES — EXPRESS AGREEMENT.

In an action for money had and received, consisting of funds of an estate which defendant collected for the heirs, 50 per cent. of which he retained, claiming that there was no agreement as to compensation, so that he was entitled to a reasonable sum, the court properly denied a motion to direct a verdict for defendant on certain of the counts asked for on the ground that no agreement to collect for 10 per cent., as claimed by plaintiff, was shown to have been made with the several assignors of plaintiff whose claims were set out in such counts, plaintiff being entitled in that form of action to go to the jury on what was a proper compensation, any contract in relation thereto being mere matter of inducement.

3. ATTORNEY AND CLIENT (§ 128) — ACTION FOR MONEY COLLECTED — DEFENSES — SPECIAL CONTRACT.

In an action for money had and received, consisting of funds of an estate collected by defendant for the heirs, 50 per cent. of which he retained as compensation, defendant may show that, under his agreement with the heirs, he should receive that amount as compensation.

4. MONEY RECEIVED (§ 1) — FOUNDATION OF ACTION.

An action for money had and received will lie in lieu of an action on contract whenever defendant has received money which belongs to plaintiff, and which natural justice and equity require him to pay over.

5. APPEAL AND ERROR (§ 882) — INSTRUCTIONS — INVITED ERROR.

In an action for money received, consisting of funds of an estate collected by defendant for plaintiff and other heirs, of which defendant claimed 50 per cent. as reasonable compensation, claiming there was no express agreement for compensation, where the answer alleged, to show services entitling defendant to such compensation, that defendant discovered in working up the case that plaintiffs were entitled as heirs to another estate, and brought an action which resulted in a part of such estate being paid to them, it was not error for which defendant could claim a reversal to instruct that the jury must find that the suit to collect the latter estate was unsuccessful, before finding for plaintiff, though the facts as to that suit were immaterial in the present action; defendant being responsible for bringing the matter into the case both by pleading and proof.

6. APPEAL AND ERROR (§ 1033) — HARMLESS ERROR — INSTRUCTIONS — INSTRUCTIONS NOT PREJUDICIAL.

In an action for money received, consisting of funds of an estate collected by defendant of which he claimed 50 per cent. as a reasonable compensation, an instruction that, to find for plaintiff, the jury must not only find that the money was collected on a 10 per cent. basis as claimed by him, but also that a suit brought by defendant to collect another estate was not successful, being favorable to him, was not prejudicial to defendant, though the latter suit was irrelevant to the present action.

7. ATTORNEY AND CLIENT (§ 128) — MONEY COLLECTED — DEFENSES.

In an action for money received, consisting of funds of an estate collected by defendant, of which he retained 50 per cent. as a reasonable compensation, the fact that defendant in collecting the funds discovered that plaintiffs were entitled as heirs to another estate, and sued to recover it, which defendant alleged to show that the compensation claimed in the present action was reasonable, was wholly immaterial.

8. TRIAL (§ 255) — INSTRUCTIONS — REQUESTS — NECESSITY.

The court is not bound to instruct on defendant's theory of the case unless requested to do so by proper instruction.

9. ATTORNEY AND CLIENT (§ 128) — ACTION FOR MONEY COLLECTED — INSTRUCTIONS — REASONABLE COMPENSATION.

In an action for money received, consisting of funds of an estate collected by defendant, of which he retained 50 per cent. as reasonable compensation on the ground that there was no special agreement for compensation, an instruction that if defendant had no agreement for compensation, but collected the fund and refused to pay over the amount retained, the jury might find for plaintiff for such amount as he should receive after deducting what defendant's services were reasonably worth, sufficiently presented defendant's theory of the case.

10. TRIAL (§ 260) — CONSTRUCTION OF CHARGE AS A WHOLE — THEORY OF CASE.

An instruction given for plaintiff properly ignored defendant's theory of the case, if his theory was adequately presented in other instructions.

11. ATTORNEY AND CLIENT (§ 128) — ACTION FOR MONEY COLLECTED — INSTRUCTIONS — CONFORMITY TO ISSUES.

In an action for funds of an estate collected by defendant, of which he retained 50 per cent. as reasonable compensation on the ground that there was no special contract, in which plaintiff claimed that the contract was for 10 per cent. compensation, an instruction to find for plaintiff, if defendant collected and refused to pay over money which belonged to plaintiff, was not objectionable as being outside the issues in that it authorized a verdict for plaintiff, though defendant did not contract for 10 per cent. as compensation; the issue being whether defendant retained money rightfully

belonging to plaintiff, and not whether there was a special contract for compensation.

12. CONTRACTS (§ 346) — ACTIONS — VARIANCE.

In an action on a special contract plaintiff can only recover on the contract alleged, and not on a different contract.

13. APPEAL AND ERROR (§ 882) — PARTIES ENTITLED TO ALLEGE ERROR — ESTOPPEL — INVITED ERROR — INSTRUCTIONS.

Defendant cannot complain that an issue made by the answer was submitted to the jury, even if it was not within the allegations of the petition.

14. TENDER (§ 24) — SUFFICIENCY — NECESSITY OF KEEPING GOOD — EFFECT.

The fact that defendant tendered to plaintiffs half of the funds collected for them is no defense to an action therefor if plaintiffs did not accept the money tendered, such tender not amounting to payment, especially where not kept good by payment into court; and hence an instruction for defendant, if he paid over the money less 50 per cent. thereof, and such amount was a reasonable compensation, was properly refused.

15. APPEAL AND ERROR (§ 1067) — HARMLESS ERROR — REFUSAL OF INSTRUCTIONS.

Where the action was to recover, as for money received, funds collected by defendant for plaintiff in which defendant claimed he was entitled to 50 per cent. as reasonable compensation in absence of an express agreement, but plaintiff claimed that there was an express agreement for a 10 per cent. compensation, a requested instruction for defendant that any contract for 10 per cent. compensation must have been made between plaintiff and defendant before the suit was not so relevant to the issues as to make its refusal reversible error, the action not being on the contract; especially in view of the fact that the question of an agreement for 10 per cent. compensation was sufficiently covered by other instructions.

16. PAYMENT (§ 73) — EVIDENCE — MAILING LETTERS.

While the sending of money orders through the mail may be prima facie evidence that they were received, and of payment, it was not evidence of payment where the letter containing them was improperly addressed.

17. TRIAL (§ 253) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE — IGNORING ISSUES.

Instructions requested for defendant, which ignored a fact essential to a finding for him, were properly refused.

18. APPEAL AND ERROR (§ 999) — JURY FINDINGS — CONCLUSIVENESS.

Questions of fact are peculiarly within the province of the trial jury, and the appellate court cannot interfere with the verdict.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Wilber S. Jenkins against William H. Clopton. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H. Clopton, pro se. George D. Harris, for respondent.

NORTONI, J.

This is a suit for money had and received. Plaintiff recovered, and defendant appeals. The petition contains thirteen counts, one of which was dismissed. The case was referred to the jury on the other twelve. The first count of the petition asserts the claim of plaintiff in his own right. The other eleven counts assert the claims of as many separate individual heirs to the fund involved, which claims have been duly assigned to the present plaintiff. The defendant is an attorney at law, practicing his profession in the city of St. Louis, and the controversy arises from his employment by a number of persons to collect their several interests in a certain trust fund in the possession of the St. Louis Union Trust Company as trustee. The theory of the plaintiff and his assigns, who employed defendant for the purpose of collecting their interests, is that they were to pay him 10 per cent. of the amount recovered for his services; while the theory of the defendant is that he was employed to perform the services without any special contract for compensation, and that therefore he should receive reasonable compensation for the services rendered.

It appears that by the provision of his last will, probated in the probate court of the city and county of St. Louis, in the year 1861, William Wise, deceased, devised to one French Reyburn the sum of $6,000 in trust for the following purposes, to wit: First, to pay to his sister, Mary Ann Wise, during her natural life, the interest and profits of such sum of $6,000; and, second, at the death of Mary Ann Wise, said sum to be...