Million v. Ohnsorg

• Citation: 10 Mo.App. 432
• Parties: B. M. MILLION, Respondent, v. ALBERT OHNSORG, ADMINISTRATOR OF AUGUST ROHN, Appellant.
• Decision Date: 07 June 1881
• Court: Court of Appeal of Missouri (US)

10 Mo.App. 432

B. M. MILLION, Respondent,

v.ALBERT OHNSORG, ADMINISTRATOR OF AUGUST ROHN, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 7, 1881.

1. A contract between an attorney and client that the attorney is to pay the costs of the litigation, and to receive, as compensation for his services, a portion of the property in controversy, is champertous and non-enforcable.

2. The legal presumption, in an action by the indorsee against the maker, that the indorsee is the owner of the notes is not rebutted by showing that they were assigned to him by a champertous agreement.

3. In such an action, the consideration for the transfer is not subject to inquiry, where no defence arising out of transactions between the parties to the note is sought to be made.

4. The indorsee of a note is not, in an action thereon, rendered incompetent as a witness because of the death of the maker.

5. On appeal from a judgment allowing a demand against an estate, it will be presumed that the affidavit required of the claimant was orally made.

6. Such a judgment will not be reversed because the record shows no evidence upon which to base a classification of the claim, where the point is not raised in the trial court.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

LOUIS GOTTSCHALK, for the appellant: That the evidence clearly showed that the plaintiff was not the legal holder of these notes, but that he held them under a champertous contract, and was, therefore, not entitled to sue or recover.-- Rev. Stats., sect. 3462; Duke v. Harper, 66 Mo. 51; Arden v. Patterson, 5 Johns. Ch. 44; Hunt v. Lyle, 8 Yerg. 143; Weakly v. Hall, 13 Ohio, 175; Webb v. Armstrong, 5 Humph. 381; Rives v. Weaver, 36 Md. 383; Barker v. Barker, 14 Wis. 143; McDonald v. Railroad Co., 29 Iowa, 174; Allard v. Lamirande, 29 Wis. 509; West v. Raymond, 29 Ind. 305. And that the court should have given defendant's instructions.

MARTIN & LACKLAND, for the respondent: The defence of champerty can only be pleaded by the defendant who is an immediate party to the champertous contract.-- Lackland v. Smith, 5 Mo. App. 153.

BAKEWELL, J., delivered the opinion of the court.

Plaintiff presented for allowance against the estate of Rohn certain demands, which were allowed and placed in the fifth class. On trial anew in the Circuit Court the following allowances were made, and were all placed in the fifth class:--

1. On a note of Godfrey for $3,600, payable to order of Million, one year after date, dated August 24, 1874--$132.59.

2. On a note of Godfrey for $3,600, payable to order of Million, one year after date, dated August 24, 1874--$132.59.

3. On a note of Rohn for $324, to order of, and indorsed by himself, assigned by Cummiskey to plaintiff, dated August 24, 1874--$368.91.

4. On a note of Rohn for $324, to order of, and indorsed by himself, assigned by Cummiskey to plaintiff, dated August 24, 1874--$385.11.

5. On a note of Rohn for $9,000, payable three years after date, to order of and indorsed by Thomas Turner, trustee, dated February 22, 1876--$4,733.26.

The note made by Godfrey, were secured by deed of trust on real estate which had been conveyed by Godfrey to Rohn, subject to the deed of trust. The amounts allowed on these notes were the balances due, after crediting proceeds of foreclosure. The large note made by Rohn was also a real estate note, on which a balance was due. The smaller notes made by Rohn were for interest.

Cummiskey testified that he was the holder and owner of the two Godfrey notes, and of the two smaller notes of Rohn; that he purchased them of Ghio before maturity; that he directed the foreclosure; and, after the foreclosure, assigned the notes to Million, on the agreement that Million was to collect the notes at his own expense, and Cummiskey to get half the proceeds; that this was the only consideration for the transfer; that he was the owner for a valuable consideration, and had given all due credits. There was also testimony to the effect that the note of Rohn to Turner was assigned to Million, the consideration being that Million was to prosecute at his expense all suits necessary for its collection, and have half the proceeds.

The court refused an instruction to the effect that if plaintiff had the notes assigned to him under an agreement by which he was to sue on them at his own cost, and if successful in recovering any amount, to divide the proceeds with the assignors, and if not successful, the assignors were not to bear any of the costs and expenses, and that this was the only consideration of such assignment, then plaintiff cannot recover.

1. A contract between attorney and client, that the attorney is to receive, as compensation for his services, a portion of the property in controversy, and that he is to pay the costs of litigation, would probably be held champertous in Missouri. The point has never been expressly decided in this State. But, in Duke v. Harper, 66 Mo. 51, the Supreme Court expressed its disapprobation of the views as to champerty intimated by this court when that case was before us, and sufficiently indicated what would be the ruling of the Supreme Court were the question presented. We therefore hold that such a contract is champertous, and that the courts of Missouri will not lend their aid to enforce it. It does not, however, follow, we think, that the Circuit Court erred in refusing the instruction set out above.

It did not concern Rohn whilst living, and it does not, now that he is dead, concern his legal representatives, what consideration Million gave for these notes. Cummiskey owned four of the notes, having paid value for them; and the other note was owned by Turner under like circumstances. The indorsee of a...