Kline v. Blackwell

• Decision Date: 21 April 1933
• Docket Number: No. 6656.,6656.
• Citation: 63 F.2d 897
• Parties: KLINE v. BLACKWELL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

63 F.2d 897 (1933)

KLINE v. BLACKWELL et al.

No. 6656.

Circuit Court of Appeals, Fifth Circuit.

March 25, 1933.

Rehearing Denied April 21, 1933.

John J. Lindsey and James M. Carson, both of Miami, Fla., and C. L. Chancey, of Fort Lauderdale, Fla., for appellant.

T. J. Backwell and A. Y. Clement, both of Miami, Fla., for appellees.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

The appeal is from a judgment at law by the court on a stipulation waiving a jury in favor of W. M. Huber, T. J. Blackwell, and W. L. Gray against B. J. Kline for attorneys' fees due for defending a suit brought against Kline by Golden Isles Corporation. Reversal is asked because of the refusal of a motion to give judgment for Kline, and because of rejections of evidence offered by him.

The only plea was the general issue. The plaintiffs proved that prior to January, 1930, they had for many years practiced law as partners at Miami, Fla., and had represented Florida Land Holding Corporation, of which Kline, residing in New York, was president and principal owner, in many litigations. Some of these were unfinished when about that date Huber left the firm. He alone was personally acquainted with Kline. About February 1, 1930, Kline came to Miami, met Blackwell, and told him he was pleased with the services of the firm, regretted Huber's withdrawal, wished Blackwell & Gray to be associated with Huber in all litigated matters he might have in the future, and would so instruct Huber. Blackwell assented. On February 5th, Kline was sued as an individual for $163,000 by Golden Isles Corporation, turned the matter over to Huber to defend, and told him to associate Blackwell & Gray. This Huber did, and all defensive pleadings through the year of litigation which followed were signed by all three or by Blackwell & Gray only. No fees were agreed on. They won the case for Kline. These facts are not contradicted by Kline, but his position is that Huber and not himself employed Blackwell & Gray, and that Huber agreed to represent the case without charge because it grew out of another litigation which Kline claimed the firm had mishandled while representing Florida Land Holding Corporation. Huber denies any agreement to serve free, and says positively that Kline directed him to employ Blackwell & Gray. The conflicts in evidence are of course settled in favor of the plaintiffs by the judgment as if by a verdict. Kline claims, however, that the case is controlled otherwise by a letter dated June 4, 1930, signed and handed to him in New York by Huber. For three months previously Kline and Blackwell had been in disagreement by correspondence touching fees in certain cases handled for Florida Land Holding Corporation which had become acrimonious, and Huber on his own initiative had gone to New York to compose the differences. In doing so he gave Kline the letter reading thus: "Any and all agreements as to fees heretofore made in behalf of the firm of Huber, Blackwell & Gray were made by me personally, you not having met either Mr. Blackwell or Mr. Gray until February, 1930. All arrangements for fees have always been made between you and myself. Since the dissolution of the firm of Huber, Blackwell & Gray any and all matters as to fees on cases other than those where written agreements exist were intended to be adjusted by me personally, the intention being that I, and not Blackwell & Gray, shall make all adjustments pertaining to fees on all cases pending or on matters that may be handled in the future. I further beg to advise you that in the matters of Transoceanic, Inc. vs. Florida Land Holding Corporation, and Golden Isles Corporation vs. Benjamin J. Kline, the employment of counsel was made by you and the Florida Land Holding Corporation of myself individually, and that there has never been any employment by you or said Company of Blackwell & Gray in these matters. Their association in these matters is simply a matter that rests entirely between them and myself individually."

It is not shown that Blackwell & Gray authorized or knew of the letter. The partnership with Huber was no longer in existence. Huber as a witness was asked nothing about the letter, and he gave no explanation. Possibly he did not know at its writing of Kline's direct approach to Blackwell & Gray to retain them, and thought his letter was true. Possibly he merely meant to interpose himself as a mediator between Blackwell and Kline. In Kline's behalf it is urged that if the letter is true, Blackwell & Gray are misjoined as plaintiffs and there can be no recovery by any one in this joint action without an amendment striking them which might have been made under Florida Comp. Gen. Laws, § 4207; and that if the letter is false it misled Kline and estops from a joint recovery. We do not so agree. If Blackwell & Gray were in fact employed by Kline either directly or through Huber they could not be deprived of their right to look to Kline for compensation by anything that afterwards...