Mcgill v. Cockrell

• Decision Date: 13 June 1924
• Citation: 101 So. 199,88 Fla. 54
• Parties: McGILL et al. v. COCKRELL et al.
• Court: Florida Supreme Court

101 So. 199

88 Fla. 54

McGILL et al. v. COCKRELL et al.

Florida Supreme Court, Division A.

June 13, 1924

Rehearing Denied July 26, 1924.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by A. W. Cockrell, Jr., and another, late partners as Cockrell & Cockrell, against Rosa Chappelle McGill and husband. Judgment for plaintiffs, and defendants bring error.

Affirmed on condition of remittitur.

(Syllabus by the Court.)

COUNSEL

John T. G. Crawford, of Jacksonville, for plaintiffs in error.

Knight & Adair, of Jacksonville, for defendants in error.

OPINION

PER CURIAM.

Cockrell & Cockrell, as late partners, recovered a judgment in the circuit court for Duval county against Rosa Chappellee McGill and her husband, S.D. McGill, execution to be satisfied solely out of the land and tenements, goods and chattels of the defendant Rosa. The defendants took a writ of error.

The action was brought upon a contract of employment of the plaintiffs for their professional services by Rosa Chappelle who at the time, November, 1911, was the widow of Pat Chappelle. The services of the plaintiffs were required by the widow in her behalf in and about certain claims and a certain threatened suit by Lewis W. and James E. Chappelle against the widow involving a third interest in certain property consisting of lands and chattels alleged to be of great value, of which Pat Chappelle had died seized and possessed, and to which Rosa, his wife, had succeeded upon his death.

Shortly after the institution of the suit by Lewis W. and J. E. Chappelle, Rosa Chappelle married S.D. McGill.

The defendants in error, Cockrell & Cockrell, represented the plaintiff in error, Rosa Chappelle through the litigation in the circuit court to the final disposition of the case in this court on May 31, 1916. See McGill v. Chappelle, 71 Fla. 479, 71 So. 836.

No amount was agreed upon between the parties to be paid for the services to be rendered. The action is against a married woman upon an antenuptial contract; her husband being joined as defendant. See McGill v. Cockrell, 81 Fla. 463 88 So. 268.

During the progress of the cause of Chappelle v. McGill, on March 21, 1912, Rosa Chappelle wrote a letter to A. W Cockrell, one of the plaintiffs in this action, of which the following, omitting date and address, is a copy:

'Dear Sir: I herewith inclose you check for $65.48, said amount to cover payment advice and service in matter of the administration and retainer as to claim by the brothers of my deceased husband, also cost of publication of notice in the matter of the administration. Of which I trust will be satisfactory.

'The above check I would have sent before now, but being so bussy trying to get my place of business open, I over look the same. However I trust matter is alright. I remain,

_________________________________ 'Respectfully,

_________________________________ R. A. Chappelle.

'P. O. Box No. 702.'

The original declaration contained four counts and the amendment to it three counts. There were pleas, demurrers, and replications which it would be unprofitable to discuss. The issues which grew out of it all were whether the three or five year statute of limitations applied, and, if the three-year statute, when did the cause of action in favor of the Cockrells accrue? Secondly, was the verdict excessive?

The three-year statute of limitations bars an action upon a contract, obligation, or liability not founded upon an instrument in writing. The five-year statute bars an action upon any contract, obligation, or liability founded upon an instrument of writing not under seal. See section 2939, Revised General Statutes.

The relation of attorney and client had been established between Cockrell & Cockrell and Rosa Chappellee before the letter of the latter to the former, in which was inclosed a check in payment for 'advice in the matter of the administration,' 'cost of publication of notice,' and 'retainer as to claim by the brothers' of the widow's deceased husband. A few days later the Cockrells, in a letter to Rosa Chappelle, acknowledged the receipt of the check in payment for the 'advice in the matter of the administration, and retainer as to the claim of the brothers' of the widow's deceased husband, 'also the cost of publication in re the administration.'

Those letters constitute the written evidence of the contract between the parties and satisfy the five-year statute of limitations. Although the letter contained no agreement to pay a certain sum of money for the services to be rendered, the promise to pay a reasonable sum is raised from the agreement to engage the attorneys and their acceptance of the employment. The employment of an attorney to render professional services to another is an express and definite agreement, and leaves nothing to be explained by parol testimony. Therefore it does not come within the rule that, where an agreement as set forth in writing is so indefinite as to necessitate resort to parol testimony to make it complete, in applying the statute of limitations it must be treated as an oral contract.

In this case the letter states, in substance, to the Cockrells attorneys at law: I retain your services in my behalf 'as to the claim by the brothers of my deceased husband.' That claim, and the only one by them, was then presented in a bill in chancery against the writer of the letter. Having accepted the employment, there is no explanation that could be made further than is contained in the establishment of the relation. No resort to parol testimony is necessary to make the employment complete. It was complete when she wrote, that part of the sum inclosed was to be applied as a 'retainer as to the claim by the brothers of my deceased husband.' The duties of the Cockrells toward the writer of the letter, Rosa Chappelle, became definitely fixed by law so soon as they acknowledged the relation between themselves and Rosa Chappelle as attorneys and client. The employment of an attorney in the matter of litigation is an engagement for his knowledge,...