Miller v. Solomon
| Decision Date | 20 May 1964 |
| Docket Number | Gen. No. 49264 |
| Citation | 199 N.E.2d 660,49 Ill.App.2d 156 |
| Parties | Saul MILLER and Frances Miller, Plaintiffs-Appellants, v. Samuel SOLOMON, Defendant-Appellee. Samuel SOLOMON, Counterclaimant-Appellee, v. Saul MILLER and Frances Miller, Counterclaimant-Defendants, Appellants. |
| Court | United States Appellate Court of Illinois |
George J. Anos and Joseph Ash, Chicago, for appellants.
Bowe, Bowe & Casey, Chicago, John D. Casey, Chicago, of counsel, for appellee.
This appeal is taken from a judgment entered in the Circuit Court of Cook County dismissing the complaint of Saul Miller and Frances Miller for want of equity, and finding in favor of Samuel Solomon, counterplaintiff, as to certain items in his countercomplaint. A judgment was entered in favor of the counterplaintiff for $3,897.40.
The plaintiffs were injured in an automobile accident on May 30, 1958, and employed the defendant to prosecute their claim for bodily injuries and property damages. The defendant filed a complaint against one Isaac Sigal. Prior to filing the complaint, the following agreement was entered into between the plaintiffs and the defendant:
'And I agree to pay him as compensation for his services a sum of money equal to 1/3 of any amount realized from said claim either by settlement or otherwise, and it is further agreed that no charge for service will be made unless recovery is had in the above claim.'
Both Saul and Frances Miller signed this agreement, and paid the defendant $50.00 for costs.
Pleadings were filed and answered, discovery was sought, and depositions taken in the suit against Sigal. On April 30, 1962 the defendant wrote a letter to Frances Miller in which he informed her that in accordance with their telephone conversation the same day, a settlement had been negotiated for $11,000.00. Enclosed with the letter were releases which the defendant directed the plaintiffs to sign. The letter contained the following paragraph:
'As per our previous discussions, of the total settlement, $1,000.00 will be deducted for expenses, leaving the balance on hand of $10,000.00, of which I will deduct one-third or $3,335.00 for attorney's fees, $325.00 for your collision carrier and $200.00 for the balance due on the costs, making total deductions of $4860.00 from the settlement of $11,000.00, which will leave the net to you of $6140.00.'
Frances Miller testified that after receiving the letter she went to the defendant's office, at which time he told her he would have to pay $1,000.00 to 'his man on the outside,' and that she would be required to pay $325.00 for the collision carrier, $200.00 for the court costs, and one-third to him. After this conversation [which is not denied by the defendant] the defendant wrote Mrs. Miller a letter, dated May 16, 1962, in which he stated that the defendant, Sigal, had withdrawn the settlement offer. The letter contained the following paragraph:
'It appears that the insurance company had allocated the sums for the offer towards your claim and since it has not been accepted, I assume that they will use these funds to settle another claim or claims.'
It was further stated in the letter that since the plaintiffs had refused to accept the settlement there was nothing further that he could do at that time, and he requested the return of the releases.
On May 18, 1962, a letter was sent to Solomon, signed by the Millers, discharging him as their attorney in the case against Sigal and requesting him to turn over all the papers in the case to Green and Green, another firm of attorneys. In a letter dated May 23, 1962, to Frances Miller, the defendant stated that he had in his letter of May 16 requested the return of the releases, and that since they failed to return them they may have closed the door in the future to further attempts at settlement, and that if no money at all was collected, it would not be the fault of the defendant.
Subsequently, through other attorneys, the plaintiffs negotiated an $11,000.00 settlement with Sigal. The defendant had filed an attorney's lien which he refused to release. The plaintiffs then filed the instant proceeding in equity. In their complaint they set out generally the facts as we have stated them, and in their prayer they ask that Solomon be required to release his attorney's lien, or that the court hold such lien as invalid. The defendant, Solomon, filed a motion to dismiss plaintiffs' complaint, which was overruled, and the thereupon filed an answer and counterclaim.
In the answer Solomon alleges that the letter sent by him to Mrs. Miller was not a statement of an account between the parties, but merely a summary of agreements and discussions held between them. He alleges that the Millers had agreed to pay $1,000.00 out of the settlement proceeds to an attorney Wolf, who officed with Solomon, as a fee for his legal services, which payment was referred to in the letter as 'expenses'; that they had agreed to pay the costs and expenses incurred in the suit against Sigal which were enumerated; and defendant denies that the plaintiffs are entitled to the relief prayed for. He prays that the complaint be dismissed for want of equity.
In this counterclaim, Solomon sets out the agreement between himself and Millers, and alleges that he diligently prosecuted the claims and filed suit in the Superior Court; that he had received an offer of $11,000.00 in settlement of the claims, which the Millers had agreed to accept; and that he thereupon made such a settlement with the attorneys representing Sigal. He further alleges that the defendants are liable to him for his attorney's fees and for expenses incurred in the prosecution of such claims. He further alleges that he is entitled to receive from the Millers as fees either $4,333.33, including the $1,000.00 which is to be paid to Wolf, in accordance with their alleged agreement made on or about April 30, 1962; or, if they refuse to abide by that agreement, $3,666.66, representing one-third of $11,000.00 pursuant to their contract. He further alleges that the counterclaimant is entitled to receive $146.10, representing the balance due him for court costs and other expenses of prosecuting the claims after giving the Millers credit for $50.00 paid by them to apply on such expenses. The counterclaimant then prays for judgment in the sum of $4,500.00.
The Millers filed a reply to the defendant's answer in which they specifically deny that they had agreed to pay $1,000.00 to attorney Wolf out of the settlement. They deny that they prevented the defendant from completing the settlement in the amount of $11,000.00, but allege that the settlement was thwarted by defendant's attempt to procure out of the settlement proceeds monies which were greater than he was entitled to. They deny that the counterplaintiff was willing to discuss his fee and expenses with the plaintiffs.
The Millers also filed an answer to Solomon's counterclaim in which they admit that suit was filed on their behalf against Sigal by Solomon. They admit that Solomon had obtained an offer of $11,000.00 in settlement of their claims, but that Solomon on May 16, 1962, advised them that the offer had been withdrawn by Sigal. They admit that there was a settlement for $11,000.00 made with the representatives of Sigal, but allege that it was made through the sole efforts of their now attorney; and they pray that the counterclaim of Solomon be dismissed and judgment entered in favor of the Millers.
The case was tried without a jury before a judge of the Circuit Court of Cook County. Solomon testified in his own behalf and under section 60 of the Practice Act, Ill.Rev.Stat.1961, c. 110, § 60. Green, an attorney, testified at the request of the Millers, and Mr. and Mrs. Miller both testified.
In Solomon's testimony he stated that Mr. Wolf was one of his office associates; that Mrs. Miller called him by 'phone and came in to see him almost every Monday that she was in Chicago. He said he told her that Mr. Wolf would handle this matter and they would take 10 per cent our of the settlement which they might get, to give to Mr. Wolf for his services, and that Mrs Miller did not disagree with that arrangement. He further testified that the letter of April 30 in which he listed the $1,000.00 as 'expenses,' had been dictated by him hastily, and did not come 'from my secretary's desk exactly the way I dictated it.' He stated that Mrs. Miller had raised no question about the payment of the $1,000.00 fee. He also testified that the figures in that letter with reference to the court expenses were not correct. These were only approximate figures, and the letter was written merely for the purpose of having the Millers sign the releases and send them back to Solomon, whereupon he would review his files and determine what sums should be paid and to whom.
Solomon further testified that the withdrawal of the offer from Sigal for $11,000.00 was a qualified withdrawal, and he thinks the offer would have been revived if he had sent the executed releases to Sigal's insurance carrier.
Mrs. Miller testified that after she had received the letter indicating that $1,000.00 would be paid for expenses, she went to Solomon's office; that he told her she would have to pay the $1,000.00 to his man on the outside; that Wolf was not mentioned at that time, and that at no time did she ever have any conversation or agreement with Solomon to pay Wolf an additional 10 per cent of the settlement as a part of the costs.
The trial court permitted the plaintiffs to file an amendment to their complaint, in which they alleged, among other things, that the defendant did not settle the claim nor recover...
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