Moore v. Ringo

• Decision Date: 31 October 1884
• Citation: 82 Mo. 468
• Parties: MOORE v. RINGO, Appellant.
• Court: Missouri Supreme Court

82 Mo. 468

MOORE

v.RINGO, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Scott Circuit Court. -- HON. J. D. FOSTER, Judge.

AFFIRMED.

D. H. McIntyre and F. M. Brown for appellant.

The consideration set forth in the written contract having failed, respondent was precluded from showing any other, there being no words in the contract indicating any other consideration. 1 Parsons on Cont., (6 Ed.) top p. 429; Emery v. Chase, 5 Greenlf. (Me.) 232; Howes v. Barker, 3 John. (N. Y.) 506; Schemerhorn v. Vanderheyden, 1 John. (N. Y.) 138; Veacock v. McCall, Gilpin (U. S.) 329; Cutter v. Reynolds, 8 B. Mon. (Ky.) 596; Mitchell v. Williamson, 6 Md. 210; Winchell v. Latham, 6 Cow. 682. The consideration named in the contract having failed, the contract possessed no binding force, and was not obligatory upon appellant. 1 Parsons on Cont., (6 Ed.) top p. 461; 2 Wharton on Cont., § 742, p. 118; Williams v. Mellon, 56 Mo. 262. But even if respondent could properly be allowed to give oral testimony to show a consideration different from that set out in the contract, the testimony so given establishes the fact that the contract was a champertous contract, and therefore void. Duke v. Harper, 66 Mo. 51; 2 Parsons on Cont., (6 Ed.) pp. 765, 766. A contract between attorney and client that the former shall prosecute a suit at his own expense for a certain part of the subject in litigation, is champertous and void. 1 Story on Cont., (5 Ed.) § 713, p. 690; Martin v. Clarke, 8 R. I. 389; Weakly v. Hall, 13 Ohio 167; Rust v. Larue, 14 Am. Dec. 172. If the consideration of any contract, either in whole or in part, be illegal, this defeats the entire contract, and it is wholly immaterial whether the contract discloses such illegality, or it be established by evidence aliunde; the principal is the same in either event. Sumner v. Summers, 54 Mo. 340. Plaintiff was defendant's attorney and this court will scrutinize closely this entire transaction. The refusal of the court to hear appellant's counsel argue the case upon its merits, was such a gross abuse of its power as to demand a reversal of the judgment. Const., art. 2, § 10; Proffat on Jury Trials, § 248; Burson v. Mahoney, 6 Baxter (Tenn.) 307; Legg v. Drake, 1 Ohio St. 286; Dobbins v. Oswait, 20 Ark. 619; Hilliard on New Trials, § 40; Graham & Waterman on New Trials, p. 682; State v. Hoffman, 78 Mo. 256.

Thoroughman & Valliant for respondent.

Where a jury is waived and the cause is tried by the court, it is unusual for a court to hear argument, except on a motion for a new trial. Verbal testimony is admissible to show a different consideration from that expressed in the deed. Miller v. McCoy, 50 Mo. 214; Fountain v. Boatman's Savings B'k, 57 Mo. 552; Hollocher v. Hollocher, 62 Mo. 267; McConnell v. Brayner, 63 Mo. 461. The contract was not champertous. Duke v. Harper, 66 Mo. 51. The defense of champerty should have been specially pleaded. Dickson v. Burk, 6 Ark. 412; Suit v. Woodhall, 116 Mass. 546; Cummins v. Barkalow, 1 Abb. Ct. App. 479; s. c., 4 Keyes (N. Y.) Ct. App. 514; Chambers v. Green, 2 G. Green (Iowa) 320.

HOUGH, C. J.

On the 9th day of April, 1869, the plaintiff, as attorney, obtained a judgment for the defendant against Hartwell Brock and Levi S. Green for the sum of $456.10. The plaintiff was employed simply to obtain judgment, Brock and Green being regarded as insolvent at the time. No effort was made to enforce this judgment by execution, until 1871, when the plaintiff suggested to the defendant that he thought the amount of his judgment could be made out of certain land which he believed had been fraudulently conveyed by Brock and Green. Thereupon an agreement was entered into between the plaintiff and the defendant that said land should be sold under execution to be issued on the judgment aforesaid, and purchased by the defendant, and divided between the plaintiff and defendant. The terms and conditions upon which the land was to be divided are differently stated by the plaintiff and the defendant, and the difference between them in this regard is the occasion of the present controversy. On the 21st of October, 1871, the land was purchased at execution sale as agreed, and on the 26th day of October, 1871, the defendant signed an instrument in writing whereby he promised in the consideration of the sum of $1 to convey by quit-claim to the plaintiff upon demand an undivided half of the property so purchased. On the 22nd of March, 1872, the defendant conveyed said property to one Allen, for the sum of $484, and this suit was brought by the plaintiff to recover one-half of the sum so received by the defendant. The defendant set up in his answer:

That the plaintiff had never paid the $1 consideration named in the contract, and that the said contract was without any consideration whatever.

And further that plaintiff was his attorney and procured the judgment against Brock and Green for him, and that he paid plaintiff for all his services in that behalf. That plaintiff advised him to bid in said land at the execution sale. That he was to pay plaintiff one-half of what would be made out of said sale over and above his debt and costs. That plaintiff was to pay half the costs of such sale if it should be made. That after said sale plaintiff brought the instrument sued on to defendant and falsely represented it to be the contract named above. That he believed plaintiff, his then attorney, and did sign said contract. That said land was of less value than his debt and costs, and that the sale to Allen was for less than his debt and costs. Wherefore he prayed judgment.

These allegations were denied by the plaintiff. The trial was by the court without the aid of a jury, and no instructions were asked or given for either party. The court rendered judgment for the plaintiff for $253.45.

On this state of the record we have only to inquire whether there is any testimony which will support the finding and judgment of the court. The defendant testified substantially as follows: Plaintiff was my attorney in suit against Brock and Green. I paid him for all services in that case and have his receipt. I signed the contract sued on. Plaintiff never paid me a dollar on the contract. Never did anything for me as a consideration. He suggested to me to go into partnership with him in the land. I understood he was to pay half the expense of suit, and be an equal partner with me in all that might be realized from sale of land in excess of my debt. This was my understanding of contract when he brought it to me and I signed it. All that I realized from sale to Allen was amount of my judgment, interest and cost of suit.

The plaintiff testified substantially as follow: I got a judgment for defendant against Brock and Green; he paid me for it; did not receipt him for all he owed me on other business; long after he had paid me for getting the judgment, I believed I saw opportunity for him to make his money out of some land that had been fraudulently sold by his defendants and told him so, and told him to have land sold under execution and buy it, and I thought I would have fraudulent deed set aside; defendant said he would go to no more costs about it unless I would go in with him and buy land and pay half cost of suit; I told him he would have to buy it, and if he would, I would order execution and have land sold, and he would convey me half interest in land, and I would pay half of cost of suit to set aside sale of land and bring suit; he said it was fair; to go on, he would do as I suggested; I ordered execution and he bought the land under my...