Muller v. Nelson, Sherrod & Carter

• Decision Date: 16 March 1978
• Docket Number: No. 17944,17944
• Citation: 563 S.W.2d 697
• Parties: Phillip MULLER et ux., Appellants, v. NELSON, SHERROD & CARTER et al., Appellees.
• Court: Texas Court of Appeals

Page 697

563 S.W.2d 697

Phillip MULLER et ux., Appellants, v. NELSON, SHERROD & CARTER et al., Appellees.

No. 17944.

Court of Civil Appeals of Texas, Fort Worth.

March 16, 1978.

McGown, Godfrey, Decker, McMackin, Shipman & McClane and Robert G. West, Fort Worth, for appellants.

Nelson, Sherrod & Carter and Eugene Sherrod, Wichita Falls, for appellees.

OPINION

MASSEY, Chief Justice.

The appellees, individuals and partners of a law firm, and hereinafter referred to merely as Sherrod, sued the appellants, husband and wife, hereinafter referred to in the singular as Phillip, to recover attorney's fees. From the award of attorney's fees to Sherrod, Muller appealed.

Judgment is affirmed.

The judgment in favor of Sherrod was by the trial court, sitting without a jury, predicated upon right of recovery under the equitable principle of quantum meruit. We have no doubt of Sherrod's alternative right to recover under that theory upon some correct measure of "value" of the attorney's services, though we hold as the trial court did not that Sherrod was entitled to recover on the contract for his services.

The completion of the work of Sherrod upon the obligation of return performance by Phillip was in behalf of Phillip, his father Edwin Muller, and uncle Arnold Muller. By the findings and conclusions of the trial court the completion of Sherrod's services was frustrated by Phillip through his settlement of the lawsuit filed by his cousin "Jack" Muller (son of a deceased uncle, Walter Muller). It was because of Phillip's execution and delivery of a deed to "Jack's" son John, transferring 70 acres of land out of the 140 acres in controversy by the suit, that there was a dismissal of "Jack's" suit "without prejudice."

It was after such lawsuit had been filed that Phillip engaged the services of attorney Sherrod to defend the same, and, in view of the settlement effected (unbeknownst to and without concurrence by Sherrod) there was nothing by way of performance thereafter remaining to be done by Sherrod under his contract with Phillip.

Sherrod accepted employment upon the representation of Phillip that he desired services to resist the lawsuit of "Jack" because of a promise he had made to Walter Muller, father of "Jack," on his deathbed, that he would see to it that "Jack" should never have any part of the 140 acres. As is to be noticed the contract was conditional, one as applied to which no particular words were required to be construed in order to constitute a condition precedent or condition subsequent; and in the event there should arise a question on such a point the determination should be concluded by the intention of the parties as manifested by the circumstances of the particular case. Sulzbacher v. Wilkinson, 1 White & Willson, Texas Court of Appeals, Civil Cases, p. 555, § 994 (Commrs. of Appeals, 1881).

At time the contract of employment was made neither Sherrod nor Phillip thought that Phillip might be in any danger of losing more than a 70-acre undivided interest in the 140 acres (and the contingent fee contract dealt with only a further undivided one-half interest in and to the 70-acre undivided interest). It was for the conditional contingent fee out of the 70-acre interest that Sherrod contracted for representing Phillip and his father and uncle. (Occasion for presence of father Edwin and uncle Arnold need not be explained.)

The contract, in a letter prepared by Sherrod and signed with approval by Phillip, contained the following material language:

" . . . Of the 70 acres of land so involved in dispute, our fee will be 50% Of whatever part is successfully defended in your behalf. . . . If for any reason you should decide to compromise and settle with the Plaintiff for less than the 70 acres in dispute, our fee again would be one-half of whatever you received in settlement.

" . . . Should we be unsuccessful in our defense, then there will be no charges for our legal services."

By the evidence it was shown that Phillip had promised Walter Muller, on his deathbed, that at some later time he would deed "an undivided interest in some property" to John Muller, then and at time of the settlement of the lawsuit the minor son of "Jack." Because of memory of such promise to Walter, and because of family unpleasantness, including the creation of such a hiatus in the Muller family relationships that Phillip's mother did not feel free to attend her family church, that Phillip decided to hasten the time he would deed "an undivided interest in some property" to John if to do so would resolve all difficulties. Finding that to deed an undivided 70-acre interest in the 140-acre tract to John would enable the discharge of what Phillip deemed his moral obligation and would be by "Jack" deemed sufficient reason to dismiss the suit filed by him, Phillip did proceed to execute a deed to the undivided 70-acre interest to John. Upon his having done so "Jack" dismissed the lawsuit.

By necessary implication the parties had contracted that Phillip should have the right to settle the lawsuit. By express provision of contract that in event of settlement Sherrod would become entitled to "one-half of whatever you (Phillip) received in settlement," the question is arisen upon the identity of the benefit Phillip received, and its value in money. Phillip contended that he received no benefit. By his pleading Phillip "stood on the contract" and insisted that any right of recovery by Sherrod should be by its terms and provisions, with any right of recovery by the theory of quantum meruit foreclosed.

In the Findings of Fact filed by the trial court appears the following:

"15. The disposition of the case between the Mullers themselves whereby Defendants Phillip and Carrol Muller conveyed a one-half interest in the 140 acres to Walter Muller's grandson, John, and Wallace Muller entered a dismissal of his lawsuit 'without prejudice' but still without recovering any interest in the land by his suit, has resulted, substantially, in a successful defense by Plaintiffs under their contract.

"16. The consideration actually received by Defendants, however, is so intermingled with the discharge of their personal obligations to Walter Muller's grandson in the dismissal agreement that it is impossible to say with certainty how much Defendants gained from the defense of the cause of action.

"17. The total legal services rendered by Plaintiffs under their employment by defendants was of the reasonable cash value of $10,500 as of December 16, 1975 when the services were terminated."

In the Conclusion of Law Filed by the trial court appears the following:

"2. The conduct of Defendants in voluntarily taking over the negotiations for a disposition of the case, coupled with the acts of defendants in making a conveyance of a one-half interest in the land in litigation to their uncle's grandson and securing a dismissal of the pending suit 'without prejudice' to the refiling of same, operated as a premature termination of Plaintiffs' services and rendered the complete performance by Plaintiffs impossible."

By other of its provisions the written contract of Sherrod and Phillip included an option for Phillip to repurchase from Sherrod any interest in the subject property Sherrod might ultimately receive predicated upon an agreed valuation and price of $300.00 per acre. Thus, there was supplied a "value" as applied to each acre of the land by a mathematical computation in the event such be of any importance as we conclude it to be. By construction Phillip's deed to John was of land having the value of...