Jordan v. Davis

• Decision Date: 24 February 1903
• Citation: Jordan v. Davis, 172 Mo. 599, 72 S.W. 686 (Mo. 1903)
• Parties: JORDAN v. DAVIS.
• Court: Missouri Supreme Court

72 S.W. 686

172 Mo. 599

JORDAN v. DAVIS.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

ATTORNEY AND CLIENT — ACTION BY CLIENT — COUNTERCLAIM FOR CONTINGENT FEE — DECLARATION OF LAW — WHAT CONSTITUTES — PROPRIETY OF REFUSAL — MEASURE OF DAMAGES.

1. A memorandum filed by the trial court in a suit tried without a jury, stating that all items of counterclaims were barred by limitation, except certain enumerated ones, as to each of which certain amounts should be allowed defendant, is not a declaration of law which can be reviewed on appeal.

2. In an action by a client against his attorney, in which the latter pleads as a set-off the client's failure to furnish costs, wherefor a suit, in which he was to have as a fee one-fourth of the recovery, was dismissed, a requested declaration of law that if the court found that, had the dismissed suit been prosecuted, the sum sued for could have been recovered, etc., then defendant was entitled to recover one-fourth thereof, is properly refused, as fixing an erroneous measure of damages.

3. It was also properly refused as injecting into the action the merits of an independent controversy, as to which there was no evidence.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by M. P. Jordan against H. B. Davis. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by plaintiff against defendant to recover from him the sum of $881.58, alleged to have been collected by defendant, as plaintiff's attorney, on October 26, 1897, and improperly retained by defendant, although demanded of him by plaintiff.

On September 27, 1898, defendant filed an amended answer, which is as follows:

"(1) And for amended answer this defendant denies each and every allegation in plaintiff's petition contained. This defendant, further answering, and by way of counterclaim, alleges that heretofore, to wit, on the 24th day of July, 1891, plaintiff and defendant entered into a contract in writing, by which defendant, who is a regularly licensed and practicing attorney of the city of St. Louis, Missouri, undertook to carry on as a lawyer, on behalf of plaintiff, a certain cause brought on that day in the circuit court of the city of St. Louis, Missouri, against one Charles P. Chouteau, for the recovery of thirty-one thousand nine hundred dollars, and which case plaintiff agreed to prosecute with defendant as his attorney to final hearing, and for which service this defendant was to receive the sum of seven thousand nine hundred and seventy-five dollars as compensation under said contract, which contract was in words and figures as follows: `St. Louis, July 21st, 1891. Henry B. Davis, Esq. — Dear Sir: In the case brought by you for me against Charles P. Chouteau, I agree to give you one-fourth of any money recovered, and if there is nothing recovered, then there is no claim on me whatever. Yours truly, Martin P. Jordan.' This defendant, further answering, says that in pursuance of said contract this defendant in all things performed for plaintiff as called for by said contract, but that plaintiff, in violation of his said contract, neglected and refused to perform his part of said agreement, and said cause was dismissed for failure of plaintiff to furnish security for costs in said cause, whereby this defendant was damaged in the sum of $7,975. This defendant, further answering, says that said contract is herewith filed, and marked `Exhibit A.' Wherefore this defendant prays judgment against the plaintiff for the sum of $7,975.

"(2) This defendant, further answering, says, by way of counterclaim, that by virtue of the contract herewith filed, marked `A,' between plaintiff and defendant, this defendant was induced to bring an action for plaintiff against one Charles P. Chouteau, which action is entitled `Martin P. Jordan vs. Charles P. Chouteau,' and was filed on the 24th day of July, 1891, and is numbered 85,859 of the circuit court of the city of St. Louis, and in which action this defendant, under the statutes of the state of Missouri, became responsible for the costs, said plaintiff being a nonresident of the state of Missouri; and which action was, on January 5, 1892, dismissed by the circuit court of the city of St. Louis for failure of plaintiff to give security for costs in said cause, whereby this defendant became liable to pay, and did pay, as the security of plaintiff, the sum of twenty-five dollars and twenty cents, for which, with costs, this defendant asks judgment.

"(3) This defendant, further answering, and by way of counterclaim, says that on the 10th day of January, 1893, at the instance and request of the plaintiff, this defendant paid, laid out, and expended on behalf of the plaintiff the sum of three dollars, which money has never been repaid to this defendant, although frequent demand has been made therefor. Wherefore defendant prays judgment for said sum of three dollars and costs.

"(4) This defendant, further answering, says that on the 10th day of January, 1893, this defendant, at the instance and request of the plaintiff, who was a nonresident of the state of Missouri, brought suit against one Charles P. Chouteau on behalf of the plaintiff in the circuit court of the city of St. Louis, Missouri, which suit was, on the 11th day of May, 1893, dismissed for failure to secure the costs thereof, whereby this defendant became liable, under the statutes of the state of Missouri, to pay and did pay the sum of thirty-five dollars and eighty-five cents, for which, with costs and interest, he asks judgment.

"(5) This defendant, further answering, and by way of counterclaim, says that heretofore, to wit, on or about the 16th day of March, 1894, plaintiff employed defendant to institute and prosecute a suit in the circuit court of the city of St. Louis against the Wm. Garrels Stave and Iron Company, and that in pursuance of said employment this defendant did prosecute said suit to a final determination, whereby plaintiff became indebted to this defendant for said services in the sum of two hundred and ninety-two dollars and thirty cents, which sum remains wholly due and unpaid, although payment thereof has been frequently demanded. Wherefore this defendant prays judgment for said sum of $292.30, with interest and costs.

"(6) This defendant, further answering, says that on or about the 2d day of January, 1891, plaintiff employed this defendant to defend a cause brought against plaintiff by one M. W. Huff, and to prosecute a suit for plaintiff against said M. W. Huff in the city of St. Louis. This defendant, further answering, says that in all things in said cases he fully carried out the instructions of plaintiff, and that his services in said causes were reasonably worth the sum of twenty-five dollars, for which, with interest and costs, he asks judgment.

"(7) Defendant, further answering, and by way of counterclaim, says that heretofore, to wit, on or about the 27th day of March, 1894, plaintiff employed defendant to furnish plaintiff with a written opinion in a certain contention between plaintiff and a firm known as Terry Bros., in regard to some real estate in the city of St. Louis, and that in pursuance to said employment defendant furnished to plaintiff an opinion in regard to said transactions, which service was of the reasonable value of fifty dollars, for which sum defendant asks judgment, with interest and costs.

"(8) This defendant, further answering, and by way of counterclaim, says that on or about the 12th day of November, 1895, plaintiff employed defendant to give to plaintiff an opinion as to the legal effect of a certain letter written to plaintiff by one Louis Werner, vice president of the St. Louis Wooden Gutter Company; that in pursuance of said employment this defendant furnished to plaintiff said opinion. This defendant further says that the reasonable value of defendant's services in furnishing said opinion is twenty-five dollars, for which, with costs and interest, he asks judgment.

"(9) This defendant, further answering, and by way of counterclaim, says that heretofore, to wit, on or about the ___ day of ___, 1895, plaintiff employed defendant to prosecute a suit in the courts of the city of St. Louis against the John Stecher Cooperage Company. Defendant further...