Mayhall v. Stoecker

• Decision Date: 06 February 1917
• Docket Number: No. 14544.,14544.
• Citation: 191 S.W. 1117
• Parties: MAYHALL v. STOECKER.
• Court: Missouri Court of Appeals

191 S.W. 1117

MAYHALL v. STOECKER.

No. 14544.

St. Louis Court of Appeals. Missouri.

Argued and Submitted January 2, 1917.

Opinion filed February 6, 1917.

Appeal from St. Louis Circuit Court, Geo. C. Hitchcock, Judge.

"Not to be officially published."

Action by Frederick W. Mayhall against Kate Stoecker, administratrix of Gustave Stoecker, deceased. From an order granting a new trial, defendant appeals. Reversed, with directions.

Earl M. Pirkey, of St. Louis, for appellant. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff, respondent here, exhibited his claim in the Probate Court against defendant, as the administratrix of the estate of her deceased husband, Gustave Stoecker, praying the court to make an order and allow a fair and reasonable charge for the legal advice and services rendered by him to the estate, claiming that a reasonable charge was $3500, on which he credits $100 as having been paid. How the trial before the Probate Court resulted, does not appear. The case was appealed to the circuit court and there upon trial before the court and a jury a verdict was returned as follows:

"We, the jury in the above cause, find in favor of defendant on the issues herein joined and feel (sic) that the plaintiff has been fully compensated by having received $100 for services rendered."

A motion for new trial being interposed in due time, which, among other grounds, alleged that the verdict was against the weight of the evidence, the court sustained it, filing a memorandum of his reasons for so acting. Excepting to this, defendant has duly appealed to our court.

A reading of all the testimony in the case, which is very voluminous, satisfies us that it was a case for the jury.

Plaintiff's account for services was very long and itemized with great particularity as to dates and times of services. He gave testimony tending to prove the rendition of the services, a large part of which, it may be said, were services pertaining to the administratrix personally and not to her in her administrative capacity. The testimony of the value of the services was very conflicting, running from $75 to $3500.

At the instance of plaintiff the court gave this instruction to the jury:

"The court instructs the jury that in this case plaintiff claims, and the defendant admits, that plaintiff was employed by defendant to render legal services to defendant as administratrix of her husband's estate. Both plaintiff and defendant agree that no specific amount was fixed as the price and value of plaintiff's services. Such being the case, the law entitled plaintiff to and places upon defendant the duty to pay the reasonable value of such services. You are, therefore, instructed that if you find for the plaintiff you should find for plaintiff in such sum as you shall find from the evidence to be the reasonable value of the services rendered by plaintiff to defendant, less the sum of $100, which defendant has heretofore paid."

When the court sustains a motion for new trial on the ground that the verdict is against the weight of the evidence, it is only in very exceptional cases that the appellate court will interfere with that action. In the case at bar, as appears by the abstract of the record, the learned trial judge sustained the motion for a new trial on the ground that the verdict was against the weight of the evidence, "in this, that at the time defendant discharged plaintiff she admitted there was a balance due plaintiff on account of services theretofore rendered; hence, under the evidence, the issue was how much defendant owed plaintiff, and not whether she owed him anything at all." We are compelled to hold that the learned trial judge, in so declaring, misconceived the law.

It is true that defendant in her testimony stated that she had paid plaintiff $100 in October, and asked him how much his whole bill would be, to which plaintiff answered, "Very little." This is the $100 payment which plaintiff credits and to which the jury refer in their verdict. But it is to be remembered that this is an action against the administratrix, as such, and not against her personally, and while, as administratrix, she had full authority to employ an attorney, she could make no binding bargain...