Laybourne v. Bray & Shifflett

• Decision Date: 06 December 1916
• Docket Number: (No. 1075.)
• Citation: 190 S.W. 1159
• Parties: LAYBOURNE v. BRAY & SHIFFLETT.
• Court: Texas Court of Appeals

190 S.W. 1159

LAYBOURNE v. BRAY & SHIFFLETT.

(No. 1075.)

Court of Civil Appeals of Texas. Amarillo.

December 6, 1916.

On Motion for Rehearing, January 10, 1917.

Appeal from District Court, Wheeler County; Frank Willis, Judge.

Action by Bray & Shifflett against W. A. Laybourne. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

Crudgington & Works, of Amarillo, and Hill & Clark, of Shamrock, for appellant. Kimbrough, Underwood & Jackson, of Amarillo, for appellees.

HALL, J.

Appellees, a firm of lawyers, filed their original petition in the district court of Wheeler county, September 9, 1915, seeking to recover of appellant $1,117.50, and interest, as attorney's fees for services rendered appellant by them in certain litigation between Spaulding Manufacturing Company and appellant. It is alleged, in substance, that on September 30, 1912, appellant executed a written contract, in which he agreed to pay appellees $1,000 for their services as attorneys in representing him in said litigation with the Spaulding Manufacturing Company, of Grinnell, Iowa; that $500 of this amount was paid by note, and the remaining $500 was to be paid upon the expiration of the statutory period allowed for appeal from the judgment entered in said Iowa cause shortly prior to the date of said contract; that said contract also provided for the payment of $100 additional for services by appellees in the Supreme Court of Iowa, in the event the said Spaulding case was appealed to said court, and for an additional $200 if said cause should be again tried in the court below; that said $1,000 was due for services already rendered at the time of said contract; that said Spaulding case was appealed, and said $100 for services in the appellate court had accrued, besides interest on said note, making said total sum; that in 1909 appellant made a written contract of employment with the Spaulding Manufacturing Company, of Grinnell, Iowa, under which he rendered services to said company as superintendent of its business of selling and trading buggies in the state of Texas; that, upon the termination of his employment, defendant claimed said company was due him the sum of $4,124.13, which amount he had retained in his settlement with said company; that said company denied his right to retain said sum, and appellees were employed by appellant to represent him in litigating said controversy. In said action appellant claimed an additional amount due him from said company. In this suit appellees set up the contract and notes, upon which the original petition was founded, alleged compliance upon their part, and a total failure on the part of appellant to pay either of said notes.

Appellant alleged: That in 1909, having a controversy with said Spaulding Manufacturing Company, and desiring attorneys who would be perfectly free from any influence and obligations, both directly and indirectly of a business or other nature to said company, and being assured by said Bray and his firm that they were in no wise connected with, employed by, or under obligations of a business nature or otherwise to, said Spaulding Manufacturing Company, and, upon the faith of said assurance, employed said Bray and his firm to represent him in said matter. That said Spaulding Company was an old, wealthy concern, of extensive business influence in Grinnell. That by said original employment said Bray and his partner were to receive one-third of whatever amount should be recovered from and above $2,000. That, during the preliminary development of said litigation, said attorneys became dissatisfied with their contingent fee arrangement, and appellant guaranteed them that they should not lose anything on account of said contract, whereupon in about May, 1912, they charged him on their books with $500 as attorney's fees, and after said Iowa case had been tried, on September 30, 1912, they charged him again with $500. That by said original contingent fee arrangement said attorneys would only have been entitled to about $800, provided the judgment rendered in defendant's favor on September 28, 1912, had been affirmed by the higher court, but that said judgment was in fact afterwards reversed. That appellant was induced by the fraudulent representations and conduct of said Bray to employ him as his attorney to continue said employment and to enter into the contracts of March 13, 1909, and September 30, 1912, and to execute the notes mentioned in plaintiff's pleadings, in this: That he employed said Bray upon the agreement that he was free and should remain free from the influence of said Spaulding Manufacturing Company during the continuance of said litigation, but said Bray accepted employment to represent said company immediately after the trial of appellant's said cause in the lower court, and while an appeal was pending, although said Bray held out to appellant that he would not accept such employment. That, about the time said cause went to trial, appellant, under said Bray's advice, permitted an offer in open court to confess judgment for $1,500 and costs, notwithstanding the fact that the jury a little later returned a verdict in appellant's favor for $295.87. That the contract of September 30, 1912, was executed immediately after the return of said verdict, said Bray taking advantage of the condition of appellant's mind produced by such apparently splendid results, in the face of said offer to confess judgment for $1,500, and induced appellant to enter into said contract for the payment of a greater fee than would have been due on said original contract, even on affirmance of said judgment; said Bray misleading appellant by representing that said offer to confess judgment for $1,500 would have been a good settlement. That appellant was ignorant of the law relating to the facts of his case and depended on said Bray, who claimed...