Jones v. Henderson

• Decision Date: 26 October 1920
• Citation: 225 S.W. 34,189 Ky. 412
• Parties: JONES v. HENDERSON.
• Court: Kentucky Court of Appeals

225 S.W. 34

189 Ky. 412

JONES v. HENDERSON.

Court of Appeals of Kentucky.

October 26, 1920

Appeal from Circuit Court, Ballard County.

Suit by Sam H. Jones against William Henderson. Judgment for defendant, and plaintiff appeals. Affirmed.

J. B Wickliffe, of Wickliffe, for appellant.

John E Kane, of Bardwell, for appellee.

SETTLE J.

The appellant, Sam H. Jones, sued the appellee, Wm. Henderson, in the court below, seeking to recover of him $1,000, which, as alleged in the petition, had been placed in his hands by appellant for the purpose recited in the following writing executed by appellee when the money was received by him:

"Rec'd of Sam H. Jones $1,000, same to be used in settlement of suit or case against him in circuit court, Ballard county or so much as needed; balance to be returned to him. This December 24, 1917.

Wm. Henderson, Attorney."

It was alleged in the petition that appellee failed to compromise or settle the case referred to in the above writing, and that same was prosecuted against appellant to a final judgment; also that the writing was without consideration, and that the consideration expressed therein failed, because of appellee's failure to carry out his promise made therein to settle the case against appellant by the use of the $1,000 paid him by the latter, or any part thereof; and, finally, that he refused to return or repay any part of the $1,000 to appellant, though the whole thereof had been demanded of him by the latter.

Appellee filed an answer and counterclaim, containing four paragraphs, in the first of which he admitted receiving of appellee the $1,000 in question for the purpose of settling the case against him in the Ballard circuit court as stated in the writing, but denied the misappropriation of the money charged in the petition, or that appellee was entitled to the return of some or any part thereof.

In the second paragraph of the answer and counterclaim it was alleged that on September 28, 1917, appellant was arrested under a warrant issued by L. M. Wilford, a justice of the peace of Ballard county, charging him with the crime of unlawfully detaining a woman, Elizabeth Bennett, with the intent to have carnal knowledge of her against her will; that, upon appearing on that date before the justice of the peace, appellant waived an examination upon the charge, and was held on bond to appear in the Ballard circuit court, at its succeeding term, to answer any indictment the grand jury might return against him for the crime mentioned, and that the $1,000 delivered to appellee by appellant, and for which the writing of December 24, 1917, was executed by way of a receipt, was received by the former as attorney of the latter for use in compromising or otherwise settling the case or prosecution referred to, which was then pending against him in the Ballard circuit court.

In paragraph 3 it was alleged that $900 of the $1,000 thus received of appellant by appellee was paid by the latter in compromise and settlement of the pending prosecution against appellant in the Ballard circuit court to J. W. Bennett, father of the prosecutrix, Elizabeth Bennett, for the benefit of himself and daughter, appellee in good faith believing at the time, from what he regarded reliable information that the commonwealth's attorney of the judicial district, including Ballard county, would consent to such compromise and settlement and dismiss the prosecution against appellant, but that as the prosecution was for a felony, the furnishing of the $1,000 by appellant to appellee for the purpose of effecting the attempted settlement and dismissal of the prosecution, as well as the payment by appellee of $900 thereof to the father of the prosecutrix, as a means to that end, was contrary to the public policy of the state and therefore unlawful, for which reason appellant was and is estopped to sue for or recover the $1,000, or any part thereof, of the appellee, or of the Bennetts, father or daughter, any part of the $900 received by them.

In the fourth and final paragraph of the answer and counterclaim it was alleged that, immediately following appellant's arrest under the warrant charging him with the crime stated, he employed appellee, who is an attorney at law, to represent him in any effort that might be made to compromise and settle the case, and also to defend him, both in the justice's and circuit courts, in any prosecution that might be instituted against him for the crime, and agreed to pay appellee for the professional services thus to be rendered by him a fee of $100; that appellee, pursuant to such employment, did faithfully represent appellant in the justice's court, and in the attempt to procure the compromise and settlement of the case, and did in like manner defend him in the circuit court on his trial for the crime charged; and that for the services rendered by him for appellant in the two courts mentioned he was entitled to be paid, and did retain as a reasonable fee, $100, of the $1,000 received by him of the latter, which was all that remained in his hands after payment of the $900 to J. W. Bennett.

By agreement of the parties all affirmative matter of the answer and counterclaim was controverted of record, and on the trial of the case, following such completion of the issues, the circuit court at the conclusion of appellant's evidence, peremptorily instructed the jury to return a verdict for the appellee, which was accordingly done. Appellant was refused a new trial, complaining of which, and of the action of the trial court in directing a verdict for the appellee, he prosecutes this appeal from the judgment of that court approving the verdict and dismissing the action.

The only evidence introduced in appellant's behalf on the trial of the case in the court below was furnished by his own testimony as a witness, which fully establishes the following facts: (1) His arrest under a warrant issued by a justice of the peace, charging him with the felony named in the pleadings, and that on appearing in the court of the justice he waived an examination under the warrant and was held under a bond, then executed by him, to answer in the Ballard circuit court such indictment as might be returned against him by the grand jury for the crime charged; (2) that, after being thus held over to the circuit court, appellant furnished appellee $1,000 for use by the latter in effecting through the young woman upon whom he was charged to have committed the crime, or her father, a settlement and dismissal of the prosecution then pending against appellant for the crime charged, and that no part of the $1,000 was ever returned to him by appellee; (3) that appellee did not succeed in effecting such settlement or dismissal of the prosecution; (4) that the commonwealth's attorney of the judicial district did not consent to such settlement, and refused to dismiss the prosecution, and that appellant was indicted for the crime charged by the grand jury and tried under the indictment.

In giving his testimony appellant did not deny the employment of appellee as attorney to procure for him the dismissal of the prosecution by means of the $1,000 furnished him, or the payment by appellee of the $900 to J. W. Bennett for that purpose; nor did he deny the employment of appellee to make his defense to the prosecution, nor that the latter did defend him in both the justice's and circuit courts. It is fairly inferable, however, from...