Lane & Bodley Company v. Taylor

• Decision Date: 22 October 1906
• Citation: 97 S.W. 441,80 Ark. 469
• Parties: LANE & BODLEY COMPANY v. TAYLOR
• Court: Arkansas Supreme Court

97 S.W. 441

80 Ark. 469

LANE & BODLEY COMPANY v. TAYLOR

Supreme Court of Arkansas

October 22, 1906

Appeal from Clay Circuit Court; Allen N. Hughes, Judge; reversed.

Cause is reversed and remanded.

G. B Oliver, for appellant.

The court erred in giving the second instruction asked by the defendant. The question of the amount of the fee had been agreed upon and settled by correspondence. It had become an account stated. 1 Cyc. 370; 1 Am. & Eng. Enc. Law, 430. If appellee had made a mistake by reason of having misplaced his books and papers, that would not excuse his making a different charge from that agreed upon. Pomeroy's Eq Jur. (1 Ed.), § 856.

J. F Gautney, for appellee.

The evidence relied on by appellant to support its objection to the instruction numbered 2 asked by the defendant shows that there was never any agreement as to the fee, and other evidence shows that the amount stated was by mistake.

OPINION

HILL C. J.

This case is a contest between an attorney and his client. The client was not satisfied with a statement of money collected and expenditures made, and refused to accept the check sent to it, and this suit resulted. The amount of collections was admitted, and the difference grew out of the amount that should be allowed as credits.

Passing all other questions and going to the heart of the case, it is found that on January 27, 1903, the appellee, Taylor, the attorney, submitted to his client a statement and transmitted a draft for $ 342.10 as the balance due the client after paying various items and his fee, which were set forth in the statement. The fee charged was $ 200, and in regard to that the appellee said in his letter: "You will remember that there were four trials in the case, two in the circuit court, and two in the Supreme Court; and while the fee of $ 200 seems large, it is not, when the work done is taken into consideration. This does not include the two other trials, one in the circuit court at the outset of the litigation, and one some time after in the chancery court, making in all six trials. Hoping this will be satisfactory," etc.

In reply to this, the client (which was represented by home counsel who conducted the correspondence) wrote, refusing to accept the check for $ 342.10, and calling attention to the matters that had been overlooked, which are not material here, and asked that the account be recast, and in regard to the fee said: "We do not object to your fee, except that we think we are entitled to one-third of it. Please send us corrected statement," etc.

On February 13th the appellee wrote them, stating that he would look into some matters referred to in the letter not material to this issue, and said nothing in regard to the fee.

On February 26 he again wrote, remitting $ 393.50, having added $ 50.40 to his previous remittances for matters explained in the letter, and added. "There are some costs that I find that I paid, but I will let that go and count the matter even. All costs are paid."

On March 7, 1903, on learning that his check had been returned and the claim against him placed in the hands of an attorney for collection, he wrote a full history of the litigation which he had conducted, with circumstantiality and detail, which is apparently a correct and truthful history of the case. The gist of the letter was an insistence upon the correctness of the charge that he had made.

To this the appellant's attorneys replied on March 11, in which they said: "We are in receipt of your favor of the 7th instant, and in answer beg to say that it is not a question of fees at all that compelled us to put the matter of Lane & Bodley Company v. J. W. Leonard in the hands of Mr. Oliver. On that point we refer you to our letter of January 29, 1903, but solely for the reason that you failed to send us money that you had collected, and when you did send check you did not send the correct amount," etc.

On March 25, 1903, the appellee wrote further in regard to costs and other matters, and concluded as follows: "I certainly think that I ought to have every cent of the fees that I have charged, and that you should take your charges out of the amount that I sent you, and then I will not have enough to pay my personal expenses in looking after the litigation, and besides I paid $ 150 of that to associate counsel."

Subsequent correspondence between the parties followed, no dispute or difference developed as to the fee, but the matter was not adjusted, and suit was brought. In said suit the defendant answered admitting the collection of the three items, towit: $ 129.60, $ 100 and $ 553.50, which were charged in the complaint to have been collected by him, and said that the same had been paid, and by way of cross-complaint he alleged that the appellant was indebted to him in the sum of $ 155 as attorney's fees and expenses in collecting said sums of money and the litigations concerning the matter.

On trial before a jury a verdict resulted in the sum of $ 5.00 in favor of appellee, and the appellants brought the case here.

The court sent the case to the jury upon instructions directing them to charge the appellee with the three items collected by him with interest (less a remittance of $ 79.60, and then credit him with the court costs paid by him, and also credit him with whatever fee he was entitled to for his services under the evidence, including expenses, and return a verdict for the party for the difference between the charges in whosoever side the difference stood.

Various other instructions were given, principally upon the question of...