Mecartney v. Guardian Trust Company
| Decision Date | 26 April 1918 |
| Citation | 202 S.W. 1131,274 Mo. 224 |
| Parties | HARRY S. MECARTNEY v. GUARDIAN TRUST COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Frank G. Johnson, Judge.
Affirmed.
Delbert J. Haff, Charles W. German and Justin D. Bowersock for appellant; Haff, Meservey, German & Michaels and Gates & English of counsel.
(1) The judgment is excessive. Randall v. Kingsland, 53 How Prac. 512; Litensdorfer v. King, 7 Colo. 436; Ex parte Plitt, 2 Wall, Jr. 453; Wright v. Livery Co., 59 S.W. 677; Kingsbury v. Joseph, 94 Mo.App. 298. (2) Interest is not recoverable on unliquidated demand. Trimble v. Railroad, 180 Mo. 574; Macomber v Bigelow, 123 Cal. 532; Sec 5430, R. S. 1909; Dozier v. Jerman, 30 Mo. 216; McCormack v. Lynch, 69 Mo.App. 524. (3) Interest should not have been allowed from March 28, 1908. Secs. 5430, 7179, R. S. 1909; Lack v Brecht, 166 Mo. 242; Carson v. Smith, 133 Mo. 606; Wheeler v. McDonald, 77 Mo.App. 213. (4) The amount of plaintiff's compensation was fixed by his letter of December 6, 1904, to the executive committee. Kennedy v. McKone, 10 A.D. 88, 41 N.Y.S. 782; Kramer v. Ewing, 10 Okla. 357; Western v. Sharp, 14 B. Mon. (Ky.) 144. (5) Plaintiff was bound to arbitrate the amount of his compensation. Bales v. Gilbert, 84 Mo.App. 675; Tennant v. Fawcett, 94 Tex. 111; Roche v. Baldwin, 135 Cal. 522; McNees v. Insurance Co., 61 Mo.App. 335; Murphy v. Mercantile Co., 61 Mo.App. 323; Stevens v. Ins. Co., 120 Mo.App. 88; James v. Ins. Co., 135 Mo.App. 247; Gragg v. Ins. Co., 132 Mo.App. 405; Roy v. Boteler, 40 Mo.App. 213; Nofsinger v. Ring, 71 Mo. 149; Williams v. Railroad, 112 Mo. 486; Pres., etc., v. Coal Co., 50 N.Y. 250; Lawrence v. White, 131 Ga. 840; Davisson v. Land Co., 96 P. 88, 153 Cal. 81; Pacaud v. Waite, 218 Ill. 138; Contracting Co. v. Power Co., 170 N.Y. 439; Mosnes v. Ins. Co., 50 Minn. 341; Lumber Co. v. Ins. Co., 80 Mich. 116; Ins. Co. v. Stocks, 149 Ill. 319; Carroll v. Ins. Co., 72 Cal. 297; Saucelito Co. v. Assurance Co., 66 Cal. 253; United States v. Robeson, 9 Pet. 319; Sutherland on Damages (3 Ed.), sec. 678; Hoyle v. Stellwagen, 28 Ind.App. 681. (6) The circuit court erred in admitting evidence of events transpiring after plaintiff's employment ceased. (7) Evidence was erroneously received of expert witnesses resident in Chicago of the value of plaintiff's services. Ward v. Kohn, 58 F. 462; Gaither v. Dougherty, 18 Ky. 709; Stanton v. Embrey, 93 U.S. 548; Knight v. Russ, 77 Cal. 410; Clark v. Ellsworth, 104 Iowa 442; State ex rel. v. Seavey, 137 Mo.App. 1; Nelson v. Masterton, 2 Ind.App. 524. (8) The trial petition pleads a contract of employment. The judgment is on quantum meruit. Secs. 1794, 1813, R. S. 1909; Railroad v. Kimmel, 58 Mo. 85; Huston v. Tyler, 140 Mo. 252; Hayes v. Bunch, 91 Mo.App. 467; Warder v. Seitz, 157 Mo. 140; McDaniel v. Emmick, 149 Mo.App. 274; Bassford v. West, 124 Mo.App. 256; McCormick v. Fidelity & Guaranty Co., 114 Mo.App. 460; McDonnell v. Stevinson, 104 Mo.App. 191; Eyerman v. Cemetery Assn., 61 Mo. 489; Wade v. Nelson, 119 Mo.App. 278; Davis v. Drew, 132 Mo.App. 503; Squire v. Brewing Co., 90 Mo.App. 462; Koons v. Car Co., 203 Mo. 227.
James A. Reed, J. G. L. Harvey and J. C. Rosenberger for respondent.
The sufficiency of the evidence to sustain the finding of the trial court is not open to review in this court. This for several reasons: 1st, because this court will not review a finding of fact made by the trial court where there is any substantial evidence to support it; 2nd, because part of the evidence has been omitted by appellant from its abstract; 3rd, because appellant introduced additional evidence before the trial court after the referee had filed his report and thereby it abandoned the referee's report and submitted the cause, on such additional evidence, to the trial court, sitting as a jury, whose finding upon a question of fact is not open to review on appeal. (a). Appellant has not brought to this court all the evidence upon which the trial court acted: It is settled law that the burden is on the appellant to show that the judgment is not supported by the evidence and that the Supreme Court will not convict the trial court of error in that regard when all of the evidence is not before it. Sonnenfeld v. Rosenthal, 247 Mo. 238; Maplegreen v. Trust Company, 237 Mo. 350; Vandeventer v. Goss, 190 Mo. 241; Tobacco Co. v. Walker, 123 Mo. 662; Gooden v. Mod. Woodmen, 194 Mo.App. 666; Crohn v. Mod. Woodmen, 145 Mo.App. 158; Furstenfeld v. Furstenfeld, 152 Mo.App. 726. (b) The appellant abandoned the referee's report and submitted the cause to the trial court sitting as a jury: by failing to ask for a recommital to the referee after the trial court had ruled that the referee erred in excluding certain testimony which was considered by the trial court; and by introducing additional evidence before the trial court not heard by the referee. The rule that this court will not review the finding of the trial court upon a question of fact where there is any evidence whatsoever to sustain such finding, applies with special force to this case. State ex rel. v. Ice Co., 246 Mo. 168. This having been a case in which a compulsory reference could have been ordered, the report of the referee was advisory only, and the trial court had the right "to act upon the report of the referee and find therefrom different conclusions of fact from those reported by the referee;" and the finding of the trial court will not be disturbed where there is any substantial evidence to support it. State ex rel. v. Ice Co., 246 Mo. 168; Utley v. Hill, 155 Mo. 258; Tobacco Co. v. Walker, 123 Mo. 662; Smith v. Baer, 166 Mo. 403. (2) The court did not err in admitting evidence of what transpired in the appeal after plaintiff's discharge. Plaintiff could not recover in this suit for any services rendered to the appellant after his discharge, however great the value of those services was. But he did not ask, nor did the court allow him, anything on this account, as its memorandum opinion clearly shows. This evidence was competent for two purposes: (1) to rebut the charge made by appellant that his services were negligent, unskilful, and worthless; and (2) to show the result achieved for appellant by the services for which he sues. (3) The judgment is not excessive. In fact plaintiff should have sued for a larger sum. This was peculiarly a question of fact for the trial court whose finding is not open to review here if there was any substantial evidence to sustain it. That there was such substantial evidence, even the appellant will hardly dispute. Ward v. Kohn, 58 F. 462; Trust Co. v. Railway, 146 F. 337; Trust Co. v. Railway, 171 F. 43; Trust Co. v. Steel Co., 201 F. 811; Trust Co. v. Steel Co., 210 F. 696; Railway v. Trust Co., 240 U.S. 166. A reading of the various opinions of the appellate courts above enumerated will in itself sufficiently demonstrate the magnitude and complexity of the litigation, its importance, the amounts involved, the labor and responsibility devolving upon the plaintiff, and the skill and courage with which he discharged his duties. The results accomplished were: first, a decree of nearly one million dollars obtained for this appellant, included in which is the reservation to appellant of the right to recover all of its damages and expenses incident to the litigation, including plaintiff's fees now sued for; second, and in addition to all this, the camplete defeat by appellant of claims of millions of dollars asserted against it by the Cambria Company, the Belt Company and its receivers, and by the Southern Company; and, third, attainment of this result by plaintiff over the opposition of his own client: (4) No interest is included in the judgment except that accruing after the institution of this suit. (5) The trial court did not err in allowing plaintiff interest from March 28, 1908, the date of the instituton of the suit. Sec. 7179, R. S. 1909; Trimble v. Railway, 180 Mo. 574. (6) Plaintiff's compensation was not fixed by his two letters of December 6, 1904, the date of his employment. Many other controversies and disputes wholly outside the scope of his original employment, and which did not arise until afterward, were put into plaintiff's charge long after these letters were written. It is idle, therefore, to say that plaintiff's guess, or estimate, contained in the above letters delimited his charge. If said letters had not been a mere "guess," or "estimate" as stated therein, but had been a definite contract, still plaintiff would have been entitled to recover the value of services rendered in other and distinct disputes not within the scope of such contract. Singer, Minick & Co. v. Steele, 125 Ill. 426; Barcus v. Gates, 130 F. 364. (7) It was not error to receive the evidence of Chicago lawyers touching the value of plaintiff's services. Stanberry v. Dickinson, 35 Iowa 493; Quint v. Ophir Mining Co., 4 Nev. 766.
OPINION
The plaintiff recovered judgment in the circuit court of Jackson County, for services rendered defendant, as attorney, and the defendant appealed.
The petition is in two counts; a third count was dismissed before trial. The recovery was on the first count for a balance of $ 79,860.57, and on the second count for a balance of $ 3,433.07, with interest from the date of filing the suit, March 28, 1908.
Plaintiff was employed by defendant December 6, 1904, and was discharged March 27, 1908. The services rendered for which compensation is demanded in the first count began with what was designated as the "Suburban Belt" and "Channel & Dock" cases. A short account of the way those cases arose is necessary in order to understand their condition and the work which plaint...
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