Lipscomb's Adm'r v. Castleman

• Decision Date: 16 April 1912
• Parties: LIPSCOMB'S ADM'R v. CASTLEMAN.
• Court: Kentucky Court of Appeals

145 S.W. 753

147 Ky. 741

LIPSCOMB'S ADM'R v. CASTLEMAN.

Court of Appeals of Kentucky.

April 16, 1912

Appeal from Circuit Court, Boone County.

Action by D. E. Castleman against C. E. Lipscomb's administrator. From a judgment for plaintiff, defendant appeals. Affirmed.

John L Vest, of Walton, S. Gaines, of Burlington, and Greene & Van Winkle, of Frankfort, for appellant.

O. M Rogers and D. E. Castleman, both of Covington, for appellee.

HOBSON C.J.

C. E Lipscomb employed D. E. Castleman as an attorney to defend a suit which Henrietta Powers had brought against him, and signed and delivered to him the following written contract "I have this day employed D. E. Castleman to represent me in the case of Henrietta Powers against myself now pending in the Boone circuit court. I agree to pay him $250 for taking the case, win or lose, and have given him my note for that sum due in one year. Should he gain the suit for me, I agree to pay him $200 additional. This August 1, 1907. C. E. Lipscomb." Castleman brought this suit against Lipscomb to recover on the note for $250 referred to in the written agreement. Lipscomb by his answer pleaded that, after the written contract was entered into, he concluded that he ought to employ other attorneys, and that thereupon it was agreed between him and Castleman that he should employ two other attorneys in the case, and that Castleman would only charge him for his services a reasonable fee, and that he had paid him $200, which was the reasonable value of his services in the action. He also denied that Castleman had gained the suit for him. The case was heard before a jury, who returned a verdict in favor of Castleman. The court entered judgment on the verdict, and Lipscomb appeals.

The defendant insists that the court erred in refusing to instruct the jury that the plaintiff was not entitled to recover more than $250, subject to a credit of $200 which had been paid him. This instruction was asked upon the ground that the evidence did not show that Castleman had gained the suit. The record of that case has been made a part of the bill of exceptions. It shows these facts: Henrietta Powers had made a deed to Lipscomb for a tract of land. The deed recited that it was made in consideration of $3,000 paid and to be paid, as follows: $2,100 cash, and the remainder to be paid on certain notes held by a third person. She alleged that no consideration was paid her for the land, that the deed was obtained by fraud, and asked that it be canceled. Lipscomb by his answer denied all this, and on final hearing the court upheld the deed, but required Lipscomb to pay the balance of the purchase money, which he admitted in his answer that he owed. It also required him to pay the cost of the action, as he had not paid the balance of the...