Leslie v. Carter
| Citation | 187 S.W. 1196,268 Mo. 420 |
| Parties | MARY E. LESLIE, Appellant, v. S. E. CARTER |
| Decision Date | 05 July 1916 |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. J. D. Perkins, Judge.
Affirmed.
Thomas Hackney and A. L. Thomas for appellant.
The defendant being at the time the trusted agent of the plaintiff and having betrayed his trust as such agent, and wrongfully placed a cloud upon her title to said real estate she was entitled to recover and is now entitled to recover the reasonable and proper expenses incurred by her in the employment of attorneys in the trial court and in the Supreme Court, to which Byrd and Carter appealed. State ex rel v. Tittman, 134 Mo. 162; McGaw v. Acker, Merrall & Condit Co., 73 A. 731; Bank v. Williams, 62 Kan. 431; Chesebro v. Powers, 78 Mich. 472; Flack v. Neill, 22 Tex. 253; People's B. & S. Assn. v. Pickerel, 55 S.W. 194; Hadley v Baxendale, 9 Exch. 341; Furstenberg v. Fawcett, 61 Md. 191; 1 Sutherland on Damages (2 Ed.), 58; 8 Am. & Eng. Ency. Law (2 Ed.), 674; Arcambel v. Wiseman, 3 Dall. (U.S.) 306; Smith v. Corege, 53 Ark. 295; Ryerson v. Chapman, 66 Me. 557; Pond v. Harris, 113 Mass. 114; Fowler v. Owens, 39 A. 329. The defendant being the agent of the plaintiff in charge of her lands became responsible for all probable damages resulting to her from a breach of his trust as agent, and having involved her in litigation to recover from Byrd the title to her land, she is entitled to recover the necessary and reasonable expenses incurred by her in restoring to her the property fraudulently obtained by defendant and conveyed by him to Byrd. The fraudulent procuring of the title and the fraudulent conveyance to Byrd was a departure from his line of duty as her agent, and a suit brought to set aside the deed to Byrd to restore the property was the natural and proximate consequence of defendant's violation of his trust; and if it was, are not the reasonable expenses incident to its successful prosecution proper items of recoverable damages?
Gray & Gray for respondent.
(1) The general rule is that counsel fees and expenses of litigation, in the class of cases made by appellant's petition, cannot be recovered. 1 Sedgwick on Damages (8 Ed.), secs. 229-235; Brown v. Cape Girardeau, 90 Mo. 377; Albers v. Merchants' Exchange, 138 Mo. 140; Pickle v. Pickle, 243 Mo. 665; Johnson v. United Rys. Co., 247 Mo. 348; Hodkinson v. McNeal Mch. Co., 161 Mo.App. 87; Evans v. Ins. Co., 87 Kan. 641, 41 L. R. A. (N. S.) 1130; Thouron v. Skirvin, 122 S.W. 55; Jackson v. Poteet, 89 S.W. 980; Bull v. Keenan, 69 N.W. 433; Aldrich v. Maher, 153 Ill.App. 413; Knefel v. Ahen, 57 Ill.App. 568; Winkler v. Roeder, 8 Am. St. 155; Reggio v. Braggiotti, 7 Cush. 166; Munson v. Straits, 99 F. 787; Clausner v. Chapin, 168 S.W. 375; Day v. Woodworth, 54 U.S. 363; Warner v. Cole, 15 Mich. 264. It will be noticed that appellant cites only one Missouri case, to-wit: State ex rel. v. Tittman, 134 Mo. 162. That case however is rendered valueless as an authority by the subsequent case of Albers v. Merchants' Exchange, supra. Even if such damages were recoverable, they should have been asked for and recovered in the first suit. Summett v. Realty & Brok. Co., 208 Mo. 511; St. Louis v. United Rys., 263 Mo. 387; Peacock v. Coltraine, 116 S.W. 389; Abbott v. Land & Water Co., 118 P. 425; Van Horn v. Treadwell, 130 P. 5; Bracken v. Trust Co., 167 N.Y. 510; Township v. Wiggins, 120 N.W. 1032; Munson v. Straits, 99 F. 787, 100 F. 1005; Lowell v. House of Good Shepherd, 44 P. 253; Suisun Lbr. Co. v. School District, 127 P. 349; Marvin v. Prentiss, 94 N.Y. 295; Cook v. Printing Co., 227 Mo. 524; Panoulias v. Equipment Co., 198 F. 493.
This is an action to recover the expenses of litigation, including attorneys' fees, alleged to have been incurred by the plaintiff in a former proceeding against the defendant to set aside a deed for fraud, and for an accounting. In the latter action, brought, as was the one at bar, in the circuit court of Jasper County, plaintiff had judgment, and upon an appeal to this court the same was affirmed except as to a correction in the allowance of interest.
Defendant demurred to the petition filed in the suit at bar and from the judgment sustaining this demurrer plaintiff appeals. The amount sued for fixes the jurisdiction of this court.
The grounds on which the sufficiency of the petition was challenged were: (1) that the damages sued for, to-wit, the expenses in preparing for trial and attorneys' fees, were not recoverable in an action of this nature; and (2) if recoverable they should have been included in the original suit.
I. The weight of authority here and elsewhere is against the right of recovery in actions of this character. Here taxable costs are fixed by statute and do not embrace expenses of litigation, including attorneys' fees. The exceptions to this rule created by statute or established by the usage of the courts and familiar to every lawyer, are fully stated by Lamm, J., in Johnson v. United Railways, 247 Mo. l. c. 326, 152 S.W. 362, and need not be set out here or further adverted to except to say that expenses of the character here sued for are not included therein. Color for the claim here made is sought in the ruling of this court in State ex rel. v. Tittmann, 134 Mo. l. c. 162, 35 S.W. 579, an action to recover damages for the breach of a curator's bond in which it was held, more by implication than a direct ruling, that "counsel fees and other expenses of prior litigation were recoverable as damages." Subsequently this court, in Albers v. Merchants' Exchange, 138 Mo. 140, 39 S.W. 473, thus distinguished the Tittman case:
"The obligation to pay the attorneys' fee in the case did not arise out of the fact that the ward was successful in his suit against his curator, but the liability was determined by the terms of the curator's bond, which, it was properly held, stood good as an indemnity against all the natural and proximate consequences of a breach of the duty which the curator owed the ward."
In the Albers case the plaintiff was attempting to recover attorney's fees alleged to have been paid by him in resisting the effort of the Merchants' Exchange to remove him therefrom as a member. The conclusion of the court in that case was that costs of the character there sued for could not be classified as damages and were therefore not recoverable. The court in so ruling declares that "the law of this State, in denying a party the right to recover from his adversary the expenses of litigation other than statutory taxable costs is in harmony with the law of our sister states."
In the discussion of this case Judge Gantt, speaking for the court, says arguendo:
"Did the circuit court err in holding that plaintiff was not entitled to recover back this fee because there was no evidence that the directors were actuated by malice in suspending plaintiff from membership, and that, in the absence of malice, the attorney's fee could not form an element of his damages?"
This language, as was said in Winstead v. Hulme, 32 Kan. 568, 4 P. 994, might seem to imply that if it had been shown that malice or oppression had mingled in the controversy, then such costs as are under consideration might be recovered. It is evident, however, from the entire opinion that what the court meant was that if the evidence disclosed that the original action was prompted by malice or oppression punitive damages might be recovered and that the amount shown to have been expended by the prevailing party in the litigation could be taken into consideration in fixing the whole amount of the judgment. The court's language sustains our conclusion. We have reference to its declaration "that in the absence of malice attorney's fees will not form an element of plaintiff's damages." Why an element if it constitutes the basis of the plaintiff's right of action? But it does not, and being only an element thereof it may simply be taken into account in the presence of malice, in determining the total amount of plaintiff's damages in the event of his recovery. Construed otherwise the conclusion reached in the Albers case would not be consonant, as the court declares it to be, with the strong current of authority elsewhere.
The rule announced in the Albers case has been affirmed in principle in Pickel v. Pickel, 243 Mo. l. c. 641, 147 S.W. 1059, the court holding that a fee would not be allowed to plaintiff's attorney as a part of the decree in a suit to set aside a fraudulent transfer of corporate stock. And in Johnson v. United Railways, 247 Mo. l. c. 326, 152 S.W. 362, involving the liability of a corporation for rights of action existing against another corporation which had transferred its franchise and assets to the former, the court held that a claim for attorneys' fees for prosecuting to final judgments this class of claims against the transferee company would not be allowed, the application therefor being held to be without any authority.
Courts of last resort in many other jurisdictions are not less emphatic in declaring the existence of the rule. In fact many of them not only hold that expenses of litigation, including attorneys' fees, will not be recognized as forming the bases of independent actions, but that they will not be allowed in the principal suit as an element of damages even where punitive or exemplary damages are allowable. Nor is it material as to the character of the action, whether it be ex contractu or ex delicto; the application of the rule is the same and nothing except costs ordinarily taxable can be allowed or recovered. [Day v Woodworth, 54 U.S. 363, 14 L.Ed. 181; Railroad v. Citizens Traction and Power Co., 16 N.M. 163, 113 P. 813; Earl v. Tupper, 45 Vt. 275; ...
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