Maynard v. Reynolds

• Decision Date: 17 May 1918
• Docket Number: 5007.
• Citation: 251 F. 784
• Parties: MAYNARD v. REYNOLDS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

251 F. 784

MAYNARD v. REYNOLDS et al.

No. 5007.

United States Court of Appeals, Eighth Circuit.

May 17, 1918

Rehearing Denied September 2, 1918.

H. M Langworthy, of Kansas City, Mo. (O. H. Dean and W. D. McLeod both of Kansas City, Mo., on the brief), for plaintiff in error.

Thomas T. Fauntleroy of St. Louis, Mo. (Chase Morsey, Patrick H Cullen, and Charles M. Hay, all of St. Louis, Mo., on the brief), for defendants in error.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

SANBORN Circuit Judge.

The single error assigned in this case is that at the close of the trial by the jury the court below refused to instruct it to return a verdict for the defendant, Maynard. This was the case. Reynolds & Harlan, attorneys at law, sued Maynard on an express contract to pay them $4,000 for their legal services and he defended. The parties went to trial on these pleadings. The plaintiffs allege that the defendant, who was the owner of about 1,100 shares of stock in the Doe Run Lead Company, a corporation, employed them to bring a suit against the St. Joseph Lead Company, a corporation, and the owner of the majority of the stock of the Doe Run Company, to prevent the St. Joseph Company from voting its stock at a coming meeting of the stockholders of the Doe Run Company, which was held on May 16, 1916, and agreed to pay him therefor $1,000 in cash and $4,000 when the suit was finally disposed of in the local court, that he paid the $1,000, that they brought the suit, obtained from the court an order on the St. Joseph Company to show cause why it should not be enjoined from voting its stock, returnable on May 15, 1916, that on May 15, 1916, the defendant peremptorily directed the plaintiffs to dismiss the suit, and they did so, but that the defendant has not paid them the $4,000. The defendant answered that he owned 1,099 shares of the stock of the Doe Run Company, that he paid the plaintiffs $1,000 for services to be rendered by them in a suit that was then pending in the court below, but that the plaintiffs never rendered any services to him in that cause, that the suit referred to in plaintiffs' complaint was instituted by them without his knowledge or authority, that he never agreed to employ or pay the plaintiffs on account of any services in the latter suit, and that the plaintiffs refused to follow his explicit directions as to the conduct of his suit, and dismissed the suit referred to in their complaint.

The plaintiffs' witnesses testified to the truth of the averments in their complaint. The defendant testified that he agreed to pay the plaintiffs $1,000 cash and $4,000 later for services in the pending suit described in his answer, that he never agreed to pay them anything on account of the new suit which they commenced, that he directed them to withdraw from that suit the averments regarding and the prayer for a receivership of the property of the Doe Run Company, and that they refused to do so and dismissed the suit.

At the close of the trial the court refused to direct the jury to return a verdict for the defendant. It then charged the jury, first, that both parties agreed upon the amount to be awarded if there was to be any award; second, that if the jury believed from a preponderance of the evidence that the defendant employed the plaintiffs to protect his interests in the matter of the Doe Run Company, and in doing so they prepared the complaint in the suit they brought and prepared for trial under their contract, and then the defendant for any reason of his own ordered them to dismiss the case, then the plaintiffs had done all they could do under the law, and the verdict of the jury should be for the plaintiffs for the sum of $4,000 and interest; but, third, that if they believed from the evidence that the plaintiffs did not, in so far as they could, follow out the directions of the defendant, and if they believed, as contended by the defendant, that the plaintiffs accepted employment to work out the rights of the plaintiff in the case that was then pending, and the plaintiffs undertook to do that, then that was not an employment in a new suit, and that if they believed, as testified to by the defendant, that because he wanted a change in the prayer of the complaint the plaintiffs went into the court, and against his will and consent dismissed the suit they had brought for him, then they could not recover.

One of the assignments of error upon which counsel rely to support their contention that the court below should have instructed the jury to return a verdict for the defendant is that the contract to pay $1,000 cash and $4,000 later for the plaintiffs' services was invalid, because it was made after the relation of attorney and client between the plaintiffs and defendant had been created, and there was no evidence that the contract was just and fair. But this defense to the contract was not pleaded in the answer, was not suggested at the trial, was not submitted to the jury or the court below and the defendant tried the case throughout on the theory that, if the contract alleged by the plaintiffs was made and performed, they were entitled to recover. It is too late to present this defense for the first time in this court, and it must now be disregarded, first, because it was essential to its presentation that it should be pleaded in the trial court, so that the plaintiffs would have notice of it and an opportunity to produce at the trial evidence that the relation of attorney and client did not exist at the time the contract was made, and that the contract was just and equitable (Finley v. Quirk, 9 Minn. 194 (Gil. 179), 86 Am.Dec. 93; Northrup v. Mississippi Valley Ins. Co., 47 Mo. 435, 443, 444, 4 Am.Rep. 337; Musser v. Adler, 86 Mo. 445, 449; Bliss on Code Pleading (3d Ed.) Sec. 352); second, in an action at law a federal appellate court is a court for the correction of the errors of the court below exclusively. The defense now presented for the first time involves the trial of two issues of fact, whether or not the relation of attorney and client existed at the time the contract was made, and whether or not the contract was fair and just. These issues were never presented to or tried by the jury or the court below, and this court has no jurisdiction under the Constitution of the United States to try them in the first instance. Again, the question of law whether the contract was valid or invalid, in view of the fiduciary relation of the parties at the making of the contract first alleged in this court, was never presented or suggested to the court below, and it never ruled upon it, therefore there is no error of that court in this regard for this court to review. Lesser Cotton Co. v. St. Louis, I.M. & S. Ry. Co., 114 F. 133, 140, 52 C.C.A. 95, 102; Virtue v. Creamery Package Co., 227 U.S. 8, 38, 33 Sup.Ct. 202, 57 L.Ed. 393; Barnes & Tucker Coal Co. v....