Morton v. Forsee

• Decision Date: 08 April 1913
• Parties: JOSEPH MORTON, Executor of Estate of JAMES F. PITT, v. ZEILDA FORSEE, Appellant
• Court: Missouri Supreme Court

155 S.W. 765

249 Mo. 409

JOSEPH MORTON, Executor of Estate of JAMES F. PITT, v. ZEILDA FORSEE, Appellant

Supreme Court of Missouri

April 8, 1913

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Affirmed.

Joseph E. Corby, Vinton Pike and Brown & Eastin for appellant.

(1) The pretended fee contract was inadmissible in evidence and should have been excluded from the consideration of the case. White v. Tolliver, 20 So. 97; Dickinson v Bradford, 59 Ala. 581; Ryan v. Ashton, 42 Iowa 365; Nesbit v. Lockman, 34 N.Y. 167; Place v Haywood, 117 N.Y. 497; Bingham v. Sheldon, 91 N.Y.S. 917; Greenfield's Estate, 14 Pa. St. 504; Thomas v. Turner, 87 Va. 1; Staley v Dodge, 50 Ill. 45; Elmore v. Johnson, 143 Ill. 513; Burnham v. Haseltine, 82 Me. 495; Huguenin v. Baseley, 14 Ves. 273; Cleine v. Engelbrecht, 41 N.J.Eq. 498; Whipple v. Barton, 63 N.H. 613; Tait v. Williamson, 2 Ch. App. 60; Cadwallader v. West, 48 Mo. 383; Barnes v. McCarthy, 132 S.W. 85; Stephens v. Dubois, 31 R. I. 138. (2) There was no evidence to support the fee contract. The evidence on rebuttal, that this, or a larger, sum agreed to between parties dealing at arms' length, would be reasonable, has no tendency to prove that defendant understood she was dealing at arms' length in the business with Pitt, or "that he did not take undue advantage of his client's complacency, confidence, ignorance or misconception." The judgment of these witnesses was that in fixing the amounts the attorney should provide for all possible contingencies, thus resolving all doubts in his own favor, whereas he could not deal for himself. Bingham v. Sheldon, 91 N.Y.S. 920; Greenfield's Estate, 14 Pa. St. 506; Blaikie v. Post, 122 N.Y.S. 292. (3) The question was not what would have been a reasonable sum to agree to pay upon the contingency of a successful defense of a suit of the exaggerated aspect presented hypothetically to the witnesses, but whether defendant knew all that Pitt was obliged to advise her of, and that all the care and providence was placed around her, as against Pitt himself, which from his situation and relation to her he was bound to exert on her behalf. Did she force him to serve her for a large sum, when she could have procured the same service for one-fifth that amount? Hunter v. Atkins, 3 My. & R. 113; Cleine v. Englebrecht, 41 N.J.Eq. 498; Burnham v. Haseltine, 82 Me. 495. (4) The contract was not apportionable. Story on Bailments, 417a; 2 Am. & Eng. Ency. Law (2 Ed.), 477; Cutter v. Powell, 6 Term. Rep. 320; Bream v. Marsh, 4 Leigh (Va.), 31; Yates v. Ballentine, 56 Mo. 530; Haysler v. Owen, 61 Mo. 270; Callahan v. Shotwell, 60 Mo. 398; Baylor v. Morrison, 2 Bibb, 103; Landa v. Shook, 30 S.W. 536; Haynes v. Baptist Church, 12 Mo.App. 536; Coe v. Smith, 6 Ind. 81; Parker v. Macomber, 17 R. I. 674; Teney v. Berger, 93 N.Y. 529; Fullmer v. Poust, 155 Pa. St. 275. The ancient common law was strictly opposed to apportionment of contracts. It is now statute law in Missouri, R.S. 1909, sec. 8047, and the rule cited is not susceptible of the flexible application that plausibly may be contended for in jurisdictions whose courts have been free "to make their own common law." 8 Cyc., Title, "Common Law." The court erred in submitting the case upon the second count, and in allowing a recovery thereon. And instructions asked by defendant excluding evidence in support of the second count should have been given.

Culver, Phillip & Spencer and James W. Boyd for respondent.

(1) The court did not err in admitting the fee contract. The fact that the relation of attorney and client existed between Pitt and defendant did not preclude them from contracting with each other. At most it only placed upon Pitt the burden of showing that in making the contract no advantage was taken of the relationship, and that the contract was fair and reasonable and understandingly entered into by appellant. Having submitted ample proof to meet this burden the contract was admissible. Bogie v. Noland, 96 Mo. 85; Feurt v. Ambrose, 24 Mo.App. 367; Street v. Goss, 62 Mo. 228; Goodrick v. Harrison, 130 Mo. 263; 1 Story Eq., sec. 311; Dickson v. Kimpinsky, 96 Mo. 258; Cutts v. Young, 147 Mo. 599; Kirschner v. Kirschner, 113 Mo. 296; Ennis v. Burnham, 159 Mo. 518; French v. Cunningham, 49 N.E. 799. (2) The contract of employment being valid, and death having prevented its full performance by Pitt, his executor is entitled to recover the reasonable value of the services rendered, measured by the value of all the services to be performed as fixed by the contract. Clark v. Gilbert, 26 N.Y. 279; Wolfe v. Howes, 20 N.Y. 203; Hargrave v. Conroy, 19 N.J.Eq. 281; Johnson v. Commissioners, 78 P. 45; 20 Am. & Eng. Ency. Law (2 Ed.), 44; Fenton v. Clark, 11 Vt. 857; Hughes v. Cash Register Co., 112 Mo.App. 101; Callahan v. Shotwell, 60 Mo. 398; Yates v. Ballentine, 56 Mo. 534; Marsh v. Richards, 29 Mo. 105; Rhude v. Mitchell, 97 Mo. 371; Hillyard v. Crabtree, 11 Tex. 263; Brittain v. Turner, 6 N.H. 481.

GRAVES, J. Faris, J., concurs; Woodson, J., concurs in result and in part of the opinion in a separate opinion; Brown, J., concurs in the first and third paragraphs of this opinion and the result; Lamm, C. J., Bond and Walker, JJ., dissent, in an opinion by Walker, J. Lamm, C. J., and Bond, J., concur; Woodson and Brown, JJ., concur in paragraph two of Woodson's opinion.

OPINION

In Banc.

GRAVES J.

-- This is an action to recover an attorney's fee alleged to be due the estate of James F. Pitt, deceased, formerly a practicing attorney in the city of St. Joseph, Missouri.

Counsel for the defendant thus summarizes plaintiff's petition:

"This action is by the executor of the late James F. Pitt, against Mrs. Forsee, to recover for services rendered defendant as attorney at law in defense of the suit of the Attorney-General of Missouri against her, which suit was begun in Buchanan Circuit Court and finally determined on appeal in this court, on April 11, 1907. This cause was tried upon an amended petition, which contained three counts. The first count set up a contract between the testator Pitt and defendant whereby defendant purported to promise to pay to Pitt a reasonable fee in any event and if the defense was entirely successful a fee of not less than $ 25,000. It alleges that Pitt defended the suit successfully in the circuit court and continued his services in the case until his death, April 10, 1906; that after his death the judgment of the circuit court was affirmed by the court by reason of Pitt's skill and services and his contract had been practically and substantially performed and asks judgment for the $ 25,000.

"The second sets up the same contract and performance by Pitt and alleges that after Pitt's death defendant was successful also in this court at an expense not exceeding $ 2500; that his services were of the reasonable value of $ 25,000, for which judgment was asked.

"The third count is a quantum meruit for the same services demanding $ 25,000."

The written contract referred to in the pleadings thus reads:

IN THE CIRCUIT COURT OF BUCHANAN COUNTY,

MAY TERM, 1904.

Edward C. Crow, Attorney-General of the State of Missouri,

Plaintiff,

v.

Zeilda Forsee, Defendant.

I hereby authorize James F. Pitt, Esq., to represent me as counsel in the defense of the above entitled cause, and for his services as such I agree to pay him in any event a reasonable fee, and if the defense is entirely successful a fee of not less than twenty-five thousand dollars. Further, I agree to pay all necessary and proper expenses incidental to the conduct of such litigation, including travelling expenses and to furnish at my own expense associate counsel whenever I may deem the same necessary.

Witness my hand this, 6th day of April, 1904.

Zeilda Forsee.

Agreed to in duplicate, this April 6, 1904.

James F. Pitt.

The plaintiff did not by answer deny the formal execution of this contract, but pleaded by way of avoidance, but conceding an obligation to pay the reasonable value of the services rendered by Pitt in the suit named in the contract. That portion of her answer reads:

"Defendant for further answer and defense states the facts to be that for a long time prior to the alleged special employment of plaintiff's testator in the matter mentioned in the petition at said time and subsequent thereto said testator for ample compensation duly paid was the confidential and legal adviser of defendant, and her true and lawful attorney for her and in her name, place and stead to direct and control the management of her estate, real and personal wherever situate, to have possession of her business office books and papers, to employ a manager, book-keeper and such other agents and persons as might in his judgment be necessary from time to time, to execute all manner of instruments, such as deeds, deeds of trust, mortgages, leases, real leases, bonds, contracts, notes, drafts, checks, receipts and all other instruments obligatory or otherwise, defendant reposing in him and said testator accepting the fullest confidence in respect to all her affairs; that she was possessed of a considerable estate in the management whereof more skill, strength, experience and knowledge of commercial and business affairs and legal rights and duties in respect thereto were required than defendant was capable of devoting to it, and hence her employment of said testator in the capacity and relation aforesaid; that the largest part of her estate consisted of property inherited by her as the sole heir of the late Amanda Corby, and the suit of the Attorney-General of Missouri related to property so inherited, the claim of the Attorney-General being founded upon a clause of the will of the late John Corby, who died seized and possessed...