Mathews v. Smith

• Decision Date: 27 November 1934
• Docket Number: Case Number: 23282
• Citation: Mathews v. Smith, 39 P.2d 48, 169 Okla. 518, 1934 OK 681 (Okla. 1934)
• Parties: MATHEWS v. SMITH et al.
• Court: Oklahoma Supreme Court

1934 OK 681

39 P.2d 48

169 Okla. 518

MATHEWS v. SMITH et al.

Case Number: 23282

Supreme Court of Oklahoma

Decided: November 27, 1934

Syllabus

¶0 1. Attorney and Client--Attorney's Lien not Affected by Settlement Made by Client Without Attorney's Consent.

Under the provisions of sections 4204, 4205, O. S. 1931 (sections 4100, 4101, C. O. S. 1921), no settlement entered into by a client without the approval or consent of his attorney shall affect or abrogate the attorney's lien provided for by the statutes of Oklahoma.

2. Same--Adverse Litigant Settling With Client Liable for Attorney's Fee Only Where Settlement Made Without His Consent.

By the provisions of sections 4206, 4207, O. S. 1931 (sections 4102, 4103, C. O. S. 1921), an adverse party, who compromises or settles a cause of action or claim with a client without the approval or consent of the client's attorney, having a lien as provided by sections 4204 and 4205, becomes liable to the attorney for the fee due him under his contract of employment. But if the attorney approves of or consents to the settlement, the adverse party is not liable to the attorney.

3. Same--Admitted Facts Held to Show Settlement Made With Consent of Attorney.

Record examined, and held, under the admitted facts in the pleadings, plaintiff as the attorney approved of and consented to the compromise and settlement between his client and the adverse parties, and judgment of the trial court for defendants should be affirmed.

Appeal from District Court, Seminole County; George Crump, Judge.

Action by Walter Mathews against Glenn J. Smith et al. From a judgment on the pleadings for defendants, plaintiff appeals. Affirmed.

Walter Mathews, in pro. per.

N.E. McNeill, for defendant ill error Glenn J. Smith.

Simons, McKnight, Simons & Mitchell, for defendant in error Eason Oil Company.

J. E. Denton, R. H. Wills, and I. L. Lockewitz, for defendant in error Cosden Oil & Gas Company.

PER CURIAM.

¶1 On July 10, 1928, Mrs. N. B. Norman by written contract of that date employed Walter Mathews, an attorney of Cushing, Okla., to prosecute an action to recover for her the E.1/2 of N.W.1/4 of section 22, township 7 north, range 5 east, Seminole county, Okla., agreeing to pay as attorney fee therefor--

"* * * the equal one-third interest in said land; or in case a judgment is recovered or a compromise is had on a money basis, then to pay such attorney one-third of the money recovered or received, but if recovered on a compromise of such cause, the one-fourth thereof. * * *

"Such attorney to receive no other compensation for his services in and about said suit."

¶2 Pursuant to said contract Waiter Mathews filed in the district court of Seminole county. on July 10, 1928, an action on behalf of N. B. Norman against Glenn J. Smith and others for the recovery of said lands, and indorsed upon the petition, "Lien claim by Walter Mathews, Atty. for Plaintiff."

¶3 Sometime thereafter settlement proceedings were initiated, and there followed telephone conversations and an exchange of letters between Walter Mathews, as attorney for the plaintiff, Mrs. Norman, and N. C. McNeill, as attorney for the defendant Glenn J. Smith. On April 9, 1930, McNeill phoned Mathews an offer of $ 1,000 in full settlement. On April 10th Mathews conferred with his client, who agreed to said settlement provided the money was paid within one week and deed and instrument of dismissal were executed. On April 11th Mathews phoned McNeill of his client's acceptance, subject to payment within one week. On April 14th Mathews wrote McNeill as follows:

"I have never heard anything more from you respecting the compromise of the case of Norman v. Smith et al. As I phoned you I have the quitclaim deed and the dismissal duly executed by my client and can close the matter at any time. But my client insists that the matter be taken care of at once, and I am afraid if it is not, she will demand more money.

"Please let me hear from you at once as to what you intend to do in the matter."

¶4 On April 18th Mathews and his client again conferred and destroyed the executed instruments. On April 19th Mathews wrote McNeill, advising of this action, but stating his client would sign new papers if a settlement could be had within the next week.

¶5 On April 25th McNeill wrote Mathews the following letter'

"In Re: Norman v. Smith

"Dear Sir:

"The Collins matter (meaning the Norman case) is now ready to straighten out and we can close the entire matter Wednesday. If you do not want to make the trip and still have the deed, if you will call me I will instruct you how to draw the draft and attach the dismissal with prejudice and the deed, or if you would rather you can meet us at Wewoka Wednesday morning. Please let me know what you will do."

¶6 This letter Mathews answered on the 26th as follows:

"As I wrote you on the 19th inst., Mrs. Norman came in and demanded the deed and dismissal, and they were torn up by me in her presence. Therefore it will be necessary to have new ones executed by her. I am mailing the deed and dismissal to her for her signature with a request that if she desires to settle this matter to sign and return them to me.

"You did not say whether you would meet my proposition in the letter above referred to, or whether it is the old price. So far as I am personally concerned, I am anxious to stay with the old proposition, even though I do not get my actual expenses. That was really the promise I made my client in order to get her to accede to the proposition before. But inasmuch as they would not let me keep the papers, but seemed inclined to put me at as much trouble and embarrassment as possible, I frankly told them I would not accede to any proposition except on a basis of where I could get some fee out of it. I am telling my client in the letter to sign and return the papers with a statement of the amount of money she wants net to her, and that they will only be delivered when I receive that amount of money plus my fees and expenses.

"Will say that it will be impossible for me to be in Wewoka on the 30th as I have a case set for trial in Oklahoma City that day. However, it will not be necessary for me to be there or to draw a draft, for when we agree on the amount I will just send the papers over and you can mail me a check. Just as soon as I hear from my client will write you."

¶7 At the same time Mathews sent the following letter to his client:

"April 26, 1930.

"Mrs. N. B. Norman,

"Konawa, Oklahoma.

"Dear Friend:

"A day or two after you were here I wrote Judge McNeill what you said about settling our ease. Today he wrote me he would settle with us on the 30th inst., but did not say what he would give, but I assume it was his old proposition. At any rate I think this is our very last chance to settle this case. I wrote him today if he would accede to the proposition in my letter, calling his attention to the fact he did not say whether he would or would not. Of course, in my letter of today I told him that the very last word I had from you was that you wanted $ 750 net to you, and therefore I would have to get enough additional to repay my expenses with a small fee.

"I believe I can get. $ 1,000 gross in settlement of the matter, but should you insist upon having $ 750 net out of it would only leave me $ 250 or less than the actual expense I have been out in the case. I cannot now accede to a settlement unless I get a reasonable fee say of $ 250 out of the ease. I am certain that I can settle for the above sum which would leave you $ 500 net, which sum I will guarantee you will receive whether I get my fee or not. Of course, if I can possibly get the $ 750 net for you I will do so. And I will not attempt to settle for a cent less than you authorize me in writing to settle for either in gross or net to you, and the money will be sent to you and no one else.

"I am enclosing herewith a quitclaim deed and a dismissal which if you will sign before witnesses and a notary public just as you did the others and send to me, along with the amount of money you will want either net or gross, indicating which, I will see that they are not delivered until that amount of money is paid. I will want you lo tell me in your letter just how much I am to settle for. But I am very frank to say that I do not believe we can ever settle for more than $ 1,000 gross. And, if we do not settle this time there will be no use of trying a further settlement, in fact, I would not want to waste any more time or trouble trying to settle.

"With very best wishes to all, I remain,

"Sincerely your friend,

"Walter Mathews."

¶8 On April 30th McNeill met Mrs. Norman and her son-in-law at Wewoka for the purpose of completing settlement of her case. At that time she exhibited the Mathews letter and advised she was ready to settle; McNeill and her son-in-law then phoned Mathews, and thereafter deed and stipulation were executed and delivered and the money paid. The stipulation is as follows:

"N. B. Norman, Plaintiff, v. Glenn J. Smith et al., Defendants. No. 12005.

"Stipulation.

"It is hereby stipulated by and between the plaintiff, N. B. Norman, in her own behalf, and the defendant, Glenn J. Smith, by his attorneys Ira C. Saunders and N.E. McNeill in the above-entitled action' that whereas heretofore the plaintiff through her attorney Walter Mathews and the defendant through his attorneys reached a tentative oral agreement to settle and compromise the above-entitled cause by the defendant Glenn J. Smith paying to the plaintiff and her attorney. Walter Mathews, the sum of $ 1,000, it being understood that said settlement was to be consummated at Wewoka. Okla., on the 30th day of April, 1930.

"And whereas the said plaintiff received a letter from her said attorney, Walter Mathews, dated April 26, 1930, advising her of said purported settlement a copy of said letter being hereto attached, and marked Exhibit 'A' and made a partial hereof.

"And whereas the said plaintiff and the defendants and their attorneys met at

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