Mesa County Nat. Bank of Grand Junction v. Berry

• Decision Date: 15 September 1913
• Citation: 135 P. 129,24 Colo.App. 487
• Parties: MESA COUNTY NAT. BANK OF GRAND JUNCTION v. BERRY.
• Court: Colorado Court of Appeals

135 P. 129

24 Colo.App. 487

MESA COUNTY NAT. BANK OF GRAND JUNCTION v. BERRY.

Court of Appeals of Colorado

September 15, 1913

Error to District Court, Mesa County; Sprigg Shackleford, Judge.

Attachment proceedings by the Mesa County National Bank against the Moody Jewelry Company and Sherman W. Moody, in which Sam B Berry intervened, claiming the property. Judgment for the intervener, and plaintiff brings error. Reversed and remanded.

Logan & Miller, of Grand Junction, for plaintiff in error.

Sam B Berry, of Grand Junction, pro se.

CUNNINGHAM P.J.

The controversy out of which this case arose involves certain household goods valued at about $600. These goods were formerly the property of Sherman W. Moody, a jeweler at Grand Junction, and the principal stockholder of the Moody Jewelry Company. The goods were located in Moody's home, which had been leased furnished to Berry, the defendant in error. Moody and the Moody Jewelry Company were heavily indebted to the plaintiff in error, the Mesa County National Bank. To satisfy this debt Moody had caused an assignment to be made of the jewelry company stock and had transferred to it certain equities in real estate, including the home. The agent of the bank was in possession of the stock of jewelry. Being dissatisfied with his transactions with the bank, Moody on or about April 21, 1909, employed Berry, who is an attorney, to bring an action or actions against the bank for the purpose of annulling the deeds which he had made to the bank or to the jewelry company, and as compensation for such services Moody made a bill of sale to the household furniture to Berry. Berry testifies that he received the bill of sale and transfer of the goods as full payment in advance for the services to be by him rendered for Moody. Shortly after making this bill of sale to Berry, Moody left the state and telegraphed Berry that he had decided to relinquish all claim to the goods, and directed Berry to turn over everything, presumably to the Moody Jewelry Company directly, and thereby indirectly turning it over to the bank. This telegram was followed by a letter confirming it. Thereafter Berry rendered no services to Moody. Before receiving the telegram, he had made certain investigations and had drawn a complaint but had not filed the same, and said complaint never was filed. On May 6th the bank brought an attachment proceeding against Moody and the Moody Jewelry Company and seized the household goods in question. Berry gave a custodian's receipt to the sheriff and by an amicable arrangement of this sort remained in possession of the goods. On August 4, 1909, Berry filed his petition in intervention in said attachment suit, claiming title to the household goods by virtue of his bill of sale. Moody never made any appearance in the attachment proceeding, and the case proceeded to trial on the merits of the petition in intervention which Berry had filed, and the question presented for our consideration is the respective rights of the bank and Berry to the household goods. The trial court directed the jury to return a verdict in favor of the intervener, which it did, and from a judgment thereon in favor of the intervener, Berry, the bank brings the case here on writ of error.

1. The bank introduced on the trial a bill of sale from Moody to the Moody Jewelry Company, which bill of sale purported to transfer the household goods, and the bank now insists that as this bill of sale antedated the one under which Berry claims, it defeats the latter. In this attachment proceeding the bank admits, in its answer to Berry's petition in intervention, that Moody and his wife were the owners and in possession of the household goods at the time the bill of sale to Berry was made. Moreover, the bill of sale to the Moody Jewelry Company was never signed by Mrs. Moody, whereas the bill of sale to Berry was signed by both Mr. and Mrs. Moody, and Berry was in possession of the goods at all times as tenant before taking the bill of sale and claiming to be the owner thereafter. In these circumstances we are not disposed to allow the contention of the bank that the household goods belonged to the jewelry company.

2. At the time of the attachment suit, as we have already pointed out, the sheriff, after having levied on the property, by a written instrument appointed Berry custodian, without fees, compensation, or cost to the sheriff or the plaintiff in the case, the plaintiff in error here. On this written instrument Berry indorsed the following: "I hereby accept the appointment as custodian of the above mentioned (meaning the household goods) on the terms and conditions therein stated, and I hereby waive and relinquish all right to fees or compensation as such custodian." This indorsement was dated and signed by Berry. The bank now contends that this estops Berry from claiming title to the goods. There might be merit in this contention had it been pleaded by the bank, but no attempt was made by the bank, in its answer to Berry's petition in intervention, to set up this custodian's receipt or to plead estoppel. "Matters of estoppel in pais to be made effective as a defense must be pleaded." Prewitt v. Lambert, 19 Colo. 11, 34 P. 684. If the bank had pleaded the transaction between Berry and the sheriff in its answer to the petition in intervention, it is possible that Berry might, by replication, have set up some satisfactory explanation and proven the same on the trial, thus avoiding its effect.

3. The principal contention between the parties, and the one to which they have devoted the greatest attention, may be thus stated: The bank insists that a client has a right at any time and for any reason satisfactory to himself to discontinue any litigation which he has instituted and may halt and discharge his counsel in any contemplated litigation not yet instituted. There can be no serious question about the soundness of this contention. Indeed, it is not disputed by defendant in error. But the bank goes further and insists that where an attorney has been paid in advance to commence a specific suit, and his client, exercising his right to discontinue the preparation for such litigation, entirely abandons all intention of bringing the same, he has a right to rescind the contract of employment which has been entered into between himself and his counsel and recover back from his attorney the fees which he has paid in advance, which fees were by the contract to cover all services to be rendered, abated only by the reasonable value of the services of counsel that have been rendered prior to such rescission of the contract. This contention of the bank Berry stoutly insists is unsound; that being ready and willing to proceed with the contract of employment, and to in every way carry out the conditions imposed upon him by its terms, he insists the attorney has the right to recover the full contract price, or where, as in this case, he has received in advance the full amount of the contract price, the law permits him to retain the same. The question thus stated is the one we must determine.

The...