McCall v. Atchley

• Decision Date: 30 April 1917
• Docket Number: No. 11688.,11688.
• Citation: 194 S.W. 714
• Parties: McCALL v. ATCHLEY.
• Court: Missouri Court of Appeals

194 S.W. 714

McCALL v. ATCHLEY.

No. 11688.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

Appeal from Circuit Court, Adair County; C. D. Stewart, Judge.

"Not to be officially published."

Action by John M. McCall against Hattie Atchley, in which defendant set up a counterclaim in her answer. Judgment for defendant on plaintiff's petition and against her on counterclaim, and plaintiff appeals. Reversed, and remanded for new trial.

See, also, 256 Mo. 39, 164 S. W. 593.

Cooley & Murrell and Campbell & Ellison, all of Kirksville, for appellant. H. F. Millan, of Kirksville, and C. C. Clark, of Burlington, Iowa, for respondent.

TRIMBLE, J.

This action is upon a written contract wherein defendant employed plaintiff and the firm of Higbee & Mills, as attorneys, to defend the contest of a will in the maintenance of which defendant was vitally interested. In said contract she agreed to give said lawyers one-fourth in value of the property willed to her if the will was sustained, or one-fourth of whatever was recovered by compromise or otherwise. If nothing was obtained, the attorneys were to receive no compensation. Before suit was begun, Higbee & Mills assigned their interest to plaintiff; hence he alone sued.

Originally the petition was in two counts. The first charged that after her attorneys had accepted said contract and had filed an answer for her in the will contest suit and were ready, able, and willing to perform said contract, and while said will contest was pending, defendant, secretly and without the knowledge or consent of her attorneys, and for the purpose of cheating and defrauding them, settled and compromised said suit, receiving under said compromise certain property, one-fourth of which was sought to be recovered as due under the contract aforesaid. The second count sought to have the contract specifically enforced. The trial court sustained a demurrer to this petition, and plaintiff appealed to the Supreme Court, where the demurrer was held good as to the second count, but not good as to the first, the court holding that it stated a good cause of action. The case was thereupon remanded for a trial on that count. See McCall v. Atchley, 256 Mo. 39, 164 S. W. 593, where will be found a copy of the contract in suit and an analysis of the said first count.

After the cause was remanded, plaintiff filed an amended petition reasserting the same cause of action stated in first count of the original petition. Defendant claims (and seems to lay much stress on it) that the petition now relied upon is not the same as the one considered by the Supreme Court; but the only difference we are able to see is that in the present petition the defendant is alleged to have received more property under the compromise than was alleged in the former petition, by reason of which the amount now sought to be recovered is $2,460 instead of $2,000, as was formerly demanded. At any rate the present petition, after stating the necessary preliminary facts as to the profession of the said attorneys, alleged the making of the will in defendant's favor, the bringing of a contest thereon by testator's only heir, and the defendant's execution of the contract sued on, whereby said attorneys were employed to defend said contest. Said petition further alleged that after said attorneys had accepted said contract and had filed an answer in said will contest suit in which they duly propounded said will, and while the said attorneys were ready, able, and willing at all times to perform their part of said contract, and while said contest action was pending, the defendant, secretly and without the knowledge or consent of her said attorneys, and for the purpose of cheating and defrauding them, settled and compromised said contest action and refused to appear in court or to make any defense to said contest; that by the terms of said compromise it was agreed and understood between defendant herein and her adversary in said contest suit that she would not appear and would make no further defense thereto, but would allow judgment to go against her setting aside said will, thereby allowing the property of said testator to descend to her said adversary as the only heir, and that in consideration thereof her said adversary agreed to convey to her out of the property derived from the testator's estate real estate of the value of $8,000 and personalty of the value of $1,840; that the terms of said compromise were fully carried out, her said adversary taking a final judgment in annulment of the will and conveying and turning over to her the property she was to receive under the compromise and which she took and has ever since held; and that, by reason of all which, her said attorneys under the contract became and are entitled to one-fourth of the value thereof, to wit, $2,460. It may be stated here that the petition also stated that Higbee & Mills had assigned their interest in the contract to plaintiff.

The defendant filed an answer in which she admitted the execution of the contract and set up a counterclaim asserting that her attorneys negligently failed to attend to said case and their duties under said employment, and, although the case was set for trial sufficiently far ahead so that she could have been notified of the date thereof and her witnesses could have been summoned, yet said attorneys never notified her, nor did any one else, that the cause would come on for hearing until about 10 o'clock in the morning of the day the case was set for trial, when the plaintiff telephoned her that the case had been called and he had answered ready, when in fact defendant was not ready on account of the negligence of her attorneys; that at this time she was at her home 15 miles from the courthouse, and it was impossible for her to get her witnesses or be present in time for trial; that, through the negligence of her said attorneys, her case went by default, and, the contestant insisting on a trial and no one being present to sustain the will, the same was set aside and for naught held, whereby the property of the testator descended to the heir, who afterwards, and without any move upon her part, deeded her 200 acres of the property which had been willed to her; but that this was $2,833.33 less than she would have received under the will, which would have been sustained had the attorneys performed their duties.

As the execution of the contract was admitted, the issues to be determined were: (1) Whether defendant compromised and settled the contest over said will; (2) whether plaintiff and his associates fully performed their duties under the contract. If both of these two matters were shown to have been done, then plaintiff was entitled to recover a sum equal to one-fourth in value of the property defendant received under the compromise. McCall v. Atchley, supra, 256 Mo. loc. cit. 48, 164 S. W. 593. However, as will hereinafter be disclosed in this opinion, owing to the evidence in the case and defendant's claim in reference thereto, a third or subsidiary matter is involved, namely: That even if defendant did enter into a written compromise of the contest suit, yet, if that compromise called for the establishment of the will, and if, through the failure (not caused by defendant) of plaintiff and his associates to subpœna the witnesses or to notify their client of the setting of the contest for trial, the will was set aside, whereby a new situation arose under which the written contract of compromise was abandoned, and defendant, by virtue of the fact that she had an independent claim for services against the estate, was enabled to effect a compromise of that claim, then plaintiff is not entitled to recover because the property defendant obtained under the last-named compromise was not secured through the efforts of plaintiff and his associates. In such case they did not perform their contract, and, as defendant did not reap any benefit from it, then plaintiff cannot recover even though, in the compromise of her independent claim, defendant obtained practically the same results as she would have obtained under the compromise of the will contest.

A trial was had, and the jury returned a verdict for defendant on plaintiff's petition and against defendant on her counterclaim. Plaintiff appealed.

The evidence disclosed the following facts about which there can be no controversy Nathaniel M. Ervin, a widower, whose only heir was his son, Harry, died in May, 1906, owning 743 acres of land in Adair county, Mo., 60 acres in Iowa, and personal property valued at about $5,000. For 20 years or more defendant had been his housekeeper and had received no wages for her services. In 1897 Noble Edward Dean, an orphan, was admitted to the family and was cared for from babyhood by defendant. Shortly before his death Nathaniel M. Ervin executed a will in which he devised 240 acres of the Adair county land to the defendant, Hattie Atchley, 210 acres to Noble Edward Dean, and the remainder of his real estate, and all of his personalty, to his son, Harry. This will was admitted to probate on May 23, 1906, and on September 4th following Harry began a suit in the Adair circuit court against the defendant herein, young Dean, and the executors of said will to contest the will on the ground that it was made while his father was of unsound mind and under undue influence exerted over him by defendant. Six days after the institution of that suit defendant employed the above-mentioned lawyers to defend the suit, and entered into the contract herein sued on. (It may perhaps be well to state here that the contract was made by defendant on behalf of herself and as guardian for her foster son, Noble Edward Dean, and the agreement as to compensation covered both her's and Dean's portion accruing to them either through the maintenance and establishment of the will or by a compromise. As no claim was made against Dean, this feature of the contract has remained unnoticed.)...