Kingsbury v. Joseph

• Decision Date: 29 April 1902
• Citation: 68 S.W. 93,94 Mo. App. 298
• Parties: KINGSBURY et al. v. JOSEPH.
• Court: Missouri Court of Appeals

68 S.W. 93

94 Mo. App. 298

KINGSBURY et al. v. JOSEPH.

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

ATTORNEY AND CLIENT — COMPENSATION — MEASURE — APPEAL — REVIEW — OPINION EVIDENCE — CREDIBILITY OF WITNESS — ADMINISTRATOR.

1. An attorney for an estate cannot engage another as associate without consent of the legal representative, but the first attorney may recover the reasonable value of all services performed by himself or assistant under his own employment.

2. Where services are rendered by an attorney, the measure of recovery therefor is the reasonable value thereof, in the absence of a contract. What such services were worth "to the estate" is not the criterion of value.

3. An action against the estate of a decedent to assert a claim for legal services is substantially an action at law.

4. In ordinary circumstances, there is nothing to review upon an appeal in an action at law, where no instructions are asked or given, and no findings of fact are made; but where defendant's testimony admits all the material facts of plaintiff's cause of action, and contradicts none of them, a verdict for defendant is erroneous.

5. Triors of facts are not bound by the testimony of experts as to their opinions of value.

6. Where both parties by their testimony at the trial show, without contradiction, a state of facts which entitles plaintiff to recover, the verdict becomes a question of law; and there is no difference in principle between such a case and an agreed case.

7. Where the oral testimony of one on whom the burden of proof rests is uncontradicted, its credibility is nevertheless a question for the triors of fact.

8. A creditor, without the consent of the debtor, may assign to another an interest in a claim arising out of contract.

9. An administrator has power to bind an estate in his charge by evidence he offers at a trial, as well as by his pleadings in a cause.

(Syllabus by the Judge.)

Appeal from Cape Girardeau court of common pleas; John A. Snider, Judge.

Action by R. A. Kingsbury and others against L. S. Joseph, administrator. Judgment for defendant, and plaintiffs appeal. Reversed.

R. A. Kingsbury and C. H. Krum, for appellants. Davis & Green, for respondent.

BARCLAY, J.

The plaintiffs took this appeal from a judgment for defendant upon a claim for an allowance of $320 against the estate of Louis Kells, deceased, which estate is now in charge of the defendant, Mr. Joseph, as administrator with the will annexed. The claim of the plaintiffs is for professional services as attorneys in prosecuting an action against a life insurance company on a policy for $5,000 issued to said Kells, which policy he had pledged to one Campbell as security for a loan of about $600 and interest. After the death of Kells the company at first refused payment of the policy. The executor of the estate declined to pay the loan and take up the policy, but told Mr. Kingsbury, one of plaintiffs, to bring suit on the policy, if necessary to collect it. The executor knew that Mr. Kingsbury had already been engaged by the pledgee, Mr. Campbell, to collect of the insurance company the claim of the latter on the policy. No question of the validity of Mr. Campbell's claim against the estate was raised at any time. The company's refusal of payment was based on the grounds that the policy was issued to Kells, in Illinois, while he was a citizen of that state, and that his death by suicide precluded the collection of the policy, by reason of its stipulations. The plaintiff, Mr. Kingsbury, brought suit in the name of Mr. Campbell in the United States circuit court at St. Louis, Mo., to collect the full amount of the policy. He associated his coplaintiff with him as counsel. Together they rendered considerable services in the suit, which was ended by a compromise for the sum of $1,750, under authority from the court in which the administration of the estate was pending. During these events the original executor, Mr. Craddock, became a nonresident; and Mr. Joseph, the present administrator of the unadministered assets, with the will annexed, was substituted in his place. In January, 1900, while Mr. Craddock was in charge of the estate, an order was made authorizing him, as executor, "or his attorney, R. A. Kingsbury," to compromise for $2,500 the said insurance claim. This was some time after the suit had been brought on the policy, but that compromise fell through. In June, 1900, another order was entered, after Mr. Joseph had charge as administrator, reciting the fact of the pending suit, and authorizing the administrator to compromise the claim of the estate on the said policy of insurance for $1,750 and costs of the suit. The same order authorized payment of the Campbell lien on the proceeds for $656.50. The compromise was carried out on the basis thus approved by said order. The proceeds of the compromise were collected by the administrator, after payment of the Campbell debt, and the suit was closed. At the trial of the claim of plaintiffs the foregoing facts appeared. Mr. Kingsbury further testified, without objection, that the original executor had directed him and his associate, Judge Krum, "to go ahead and bring suit, and the estate would pay" them "a reasonable fee." The items of service in bringing the suit and preparing for trial were fully given. Several attorneys of long experience testified that the services rendered by plaintiffs were reasonably worth $250. The foregoing facts were admitted in evidence without objection. On the part of defendant it appeared that the executor had another attorney, who "consulted with plaintiffs and advised with them about this suit." He testified that the reasonable value of the services of plaintiffs was $250; but he added that he did not "think their services worth that to the estate in addition to" his own services in collecting the money, for which he received $200, according to his testimony, the latter item of which was received over objection by plaintiffs. He had no recollection of "any agreement to pay any sum for" the services of Mr. Kingsbury, but he conceded that it was "understood, however, that suit should be brought," and that Mr. Kingsbury and himself were to do so, but witness was not joined by plaintiffs as attorney when the suit was filed. Defendant put in evidence the order of court of January, 1900, which authorized settlement of the insurance suit by Mr. Craddock, as executor, and recited that R. A. Kingsbury was "his representative." The order is quite elaborate. In substance, it ascertains the Campbell debt to be $656.50, and declares it a first lien on the proceeds of the policy, and states the ground on which the compromise was considered advisable by the court, namely, the existence of the facts already given, bearing on the defense of suicide under the law of Illinois, which the insurance company claimed to be applicable. It is not needful to set forth the defendant's testimony at length. It will suffice to say that it admitted the employment of Mr. Kingsbury on behalf of the estate; that he had rendered valuable services for the estate, and had not been paid anything therefor. Nor was any evidence whatever offered by defendant to contradict those material...