Locke v. Woodman

• Decision Date: 08 November 1920
• Docket Number: No. 13739.,13739.
• Citation: 225 S.W. 352
• Parties: LOCKE et al. v. WOODMAN et al. (SAUNDERS et al., Garnishees).
• Court: Missouri Court of Appeals

225 S.W. 352

LOCKE et al. v. WOODMAN et al. (SAUNDERS et al., Garnishees).

No. 13739.

Kansas City Court of Appeals. Missouri.

November 8, 1920.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be officially published."

Action by Samuel M. Locke and another against Alfred H. Woodman and others, in which Walter H. Saunders and others were garnished. From a judgment for plaintiffs granting insufficient relief, the plaintiffs appeal. Affirmed.

See, also, 216 S. W. 1006.

R. M. Bagby, of Fayette, and C. C. Madison, of Kansas City, for appellants.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondents.

TRIMBLE, J.

This is a garnishment proceeding incident to, and an auxiliary of, a judgment obtained in an attachment suit brought in Audrain county against defendants, who, being residents of Canada, are referred to in the record as "the Canadians." A small fund in Audrain county was attached, and the garnishees, respondents herein (a firm of attorneys in St. Louis), were duly summoned. Their objections to the jurisdiction of the court were finally disposed of in State ex rel. v. Barnett, 193 Mo. App. 36, 180 S. W. 458. In the meantime the plaintiffs, on January 5, 1916, in the attachment suit, obtained judgment in the sum of $13,517.50 against the property of defendants. Upon the filing of garnishees' answer to the interrogatories, plaintiffs filed their denial, to which the garnishees replied, and on the issues thus joined the garnishment proceedings were tried, resulting in a verdict and judgment in favor of plaintiffs for the full amount of the fund, to wit, $6,974.62. An appeal was taken by the garnishees to the St. Louis Court of Appeals, where the judgment was reversed, and the cause remanded for a new trial. Locke v. Woodman, 216 S. W. 1006. When the case went back to the circuit court of Audrain county, a change of venue was taken to Howard county, where it was again tried, resulting in a verdict and judgment in plaintiffs' favor for only that part of the fund over which there was no contention, to wit, $1,805.59, which, with interest, amounted to $2,311.45, thereby upholding the garnishees' claim to $5,000 of the fund as an attorney's fee and $169.03 for costs and expenses incurred and paid by them in the course of their employment as such attorneys. Plaintiffs have appealed, complaining of errors committed in the trial.

Under the statute (section 2431, R. S. 1909) plaintiffs' denial of garnishees' answer becomes the first formal pleading in the creation of the issues to be tried in garnishment proceedings. In such denial plaintiffs set up that in certain receivership and foreclosure proceedings in the United States Court for the Eastern Division of the Eastern District of Missouri, involving the Williamsville, Greenville & St. Louis Railway, Garnishee Barth received from the special master therein the sum of $3,934 for and on account of the defendant David W. Adam, the sum of $1,465.62 as money of the defendant Alfred H. Woodman, and the sum of $1,575 as the money of James H. Sanderson. These amounts aggregated $6,974.62.

The garnishees' amended reply (filed May 7, 1920), after a general denial, admitted the receipt of said sum of $6,974.62 as having been collected by them from the proceeds of bonds proved up in said receivership and foreclosure proceedings, of which amount $1,494.56 was collected on July 10, 1915, and the balance, to wit, $5,480.06, was collected on August 4, 1915. The reply further set up that garnishees, as attorneys, had rendered professional services to the defendants whereby the latter had become indebted to garnishees in the sum of $5,000 as an attorneys' fee and $169.03 for costs and expenses incurred by the garnishees in their said employment; that said fee had become due and owing prior to the time of the collection of said sums on said bonds; that the amount of said fee was agreed to by the garnishees and the defendants, and the amount thereof fixed at $5,000, and said fee had become an account stated; that when they collected the said sum of $1,494.56 they applied same on their fee, and when the $5,480.06 was collected they applied the sum of $3,505.44 to the payment of the balance of their fee and the sum of $169.03 to the payment of said expenditures, leaving in their hands the said sum of $1,805.59 belonging to defendants, as alleged in garnishees' answer. The reply further set up that no demand had ever been made of the garnishees by the defendants for the $5,000 thus applied on the stated account, "and plaintiffs herein can now in no wise dispute or question the same."

As hereinbefore stated, garnishees compose a firm of St. Louis attorneys known as Leahy, Saunders & Barth. The defendants resided in Canada, and were interested in various properties in Missouri, having purchased certain lands in Wayne county, as well as owning stock and bonds of the Williamsville, Greenville & St. Louis Railway Company in said county; also shares in an iron and lumber company and in an abstract company. These matters became complicated and involved either financially or in litigation and perhaps both.

The evidence discloses that David W. Adam was a member of the syndicate and its Canadian lawyer. He was spokesman for the members thereof and conducted the business and correspondence of the syndicate for them. The evidence further shows that the garnishee firm performed arduous, intricate, and complex services for them, and that said attorneys were employed by, and rendered the services for, the members of the syndicate jointly and personally, and not by or for the various corporations formed, or whose stock was held, by the syndicate, as appellants' brief in one place seems to imply. There is no evidence that the services rendered by the attorneys were for the corporations themselves instead of the members of the syndicate. We mention this here for the purpose of answering appellants' complaint as to the refusal of their instruction No. 1, which told the jury defendants were under no obligation to pay garnishees for services rendered or expenses incurred in behalf of corporations in which defendants were stockholders or officers, and that, if the services were rendered such corporations, the rendering of a bill therefor and acquiescence therein would not constitute a binding agreement between the defendants and the garnishees such as would entitle garnishees to satisfy said alleged account from funds belonging to the individual defendants. There was no error in refusing said instruction.

Whether the $5,000 fee was in the shape of an account stated was the vital question at the trial. Garnishees introduced Mr. Edward D'Arcy, an attorney of St. Louis, who represented the company that sold certain of the Missouri properties to the defendants. He testified that he made a trip to Canada, and on August 1, 1914, talked with the syndicate, the members of which were all present. D'Arcy was seeking a settlement of the balance the "Canadians" owed for the purchase of the lands they had bought of his client. In these negotiations for a settlement David W. Adam, speaking for the members of the syndicate, all of whom were present and acquiesced in his statement, said they owed Barth (garnishee firm) a fee of $5,000 and wanted D'Arcy's client, as a part of the settlement, to advance the money to pay that off. In corroboration of his (D'Arcy's) testimony, the witness produced a memorandum in Adam's handwriting of what defendants desired done in effecting the settlement, which memorandum stated, among other things, that D'Arcy's client should make cash advances to pay off certain debts, "including fees to Barth and the expenses incident to our land litigation," etc. This evidence was not in the case when it went to the St. Louis Court of Appeals; the garnishees not being aware of the existence of such testimony at that time. As stated, this was on August 1, 1914.

Prior to this, and on April 1, 1914, Adam, acting for the syndicate, wrote a letter to Barth (of garnishees' firm) in the course of which, speaking "with reference to your compensation," he said:

"As I have no idea what your charge is likely to be, it would probably be as well that you advise us of same," and "I feel that we should have some definite understanding in regard to your charges." .

After having thus shown by Adam's letter that he had requested that the amount of the fee be named, and after having shown by D'Arcy that in August, 1914, Adam and the members of the syndicate knew the fee was $5,000 and recognized it as a valid debt, respondent garnishees offered a carbon copy of a letter written by Barth to Adam on May 6, 1914, which, among other things, said:

"In your letter of the 1st ult. you refer to the matter of my compensation and suggest that I advise you concerning same. I have given the matter careful consideration, and I have concluded that our minimum fee should be $5,000," etc.

The letter closed with a request to "please advise me as to the matter herein as soon as possible.

One of the errors complained of by appellants is the admission of this carbon copy in evidence, the grounds of objection being: (1) That loss or destruction of the original was not shown; (2) that there was no proof of its having been mailed. So far as the first ground is concerned, the letter being to one outside the United States, the original was beyond the jurisdiction of the court. State v. Myer, 259 Mo. 306, 318, 168 S. W. 717; Schwall v. Milling Co., 195 Mo. App. 89, 92, 190 S. W. 959; Fuller v. Robinson, 230 Mo. 22, 57, 130 S. W. 343, Ann. Cas. 1912A, 938. In addition to this, a letter from Adam dated' July 25, 1914, shows he had a fire in his office, which destroyed, scorched, or spoiled his papers, including correspondence, and this, together with the fact that at the...