N.Y. Life Ins. Co v. Smith, (No. 18852.)

• Decision Date: 22 January 1929
• Docket Number: (No. 18852.)
• Citation: 147 S.E. 126,39 Ga.App. 160
• Parties: NEW YORK LIFE INS. CO. v. SMITH.
• Court: Georgia Court of Appeals

39 Ga.App. 160

147 S.E. 126

NEW YORK LIFE INS. CO.

v.SMITH.

(No. 18852.)

Court of Appeals of Georgia, Division No. 2.

Jan. 22, 1929.

Judgment Adhered to on Rehearing March 2, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Cook County; Jon P. Knight, Judge.

Action by J. C. Smith against the New York Life Insurance Company. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Affirmed.

Statement of facts by Jenkins, P. J.:

This was a suit by an attorney, for fees alleged to be due him for services rendered in foreclosure proceedings against the makers of certain notes, secured by deeds to land and held by the defendant. The plaintiff's contract was made with the original payee of the notes and grantee in the security deeds, who had assigned the papers to the defendant, but to whom the claims had been sent by the defendant for collection. The separate contract of assignment provided that the assignor should bear the expense of any foreclosure proceedings brought on the papers. Of this the plaintiff had no notice. The papers were turned over to the plaintiff about April, 1922; notices of suit in order to recover attorney's fees were served, and foreclosure suits were filed and prosecuted in some cases to judgment. The plaintiff continued to represent the defendant in these cases until August 18, 1923, when his services were terminated by the defendant. The record shows that the plaintiff made a collection for the defendant on June 20, 1923, of $2,312 which he held, and the suit was instituted January 7, 1927, to recover a balance of $2,999 alleged to be due the plaintiff.

The plaintiff testified that he was to receive as fees a certain percentage of the amounts for which the various suits were brought, and that such fees were payable when the litigation was concluded and the judgments paid, or sales of the land made. The defendant contended that the action was barred by the statute of limitations, more than four years having elapsed after thenotes were turned over to the plaintiff, and in some cases after judgments had been obtained by him, before the filing of the present suit. It further contended that under the contract of assignment between the defendant and the original payee of the notes and grantee in the security deeds, the assignor to the defendant had no authority to employ the plaintiff, and to bind the defendant for his fees, and that, therefore, any claim the plaintiff might have was against the assignor and not against the defendant. It was further contended that the plaintiff had already collected and retained $2,312, which amounted to more than he was entitled to receive from the defendant because after the institution of the foreclosure proceedings the defendant employed other counsel to represent it in those matters, and the plaintiff agreed with the other attorneys that the total fees to be paid for all services rendered in the foreclosure suits would be 10 per cent thereon, and that the other attorneys employed by the defendant should receive a half of the 10 per cent, and the defendant the remaining half. A letter purporting to be from the plaintiff to the other attorneys, acknowledging such an arrangement for the division of fees, was introduced in evidence by the defendant. The plaintiff denied having written this letter, and denied that he had signed it, and swore that he had a brother who was accustomed to forge his name, and that his brother probably wrote and signed it. The jury found for the plaintiff in the full amount sued for. The defendant excepts to the overruling of its motion for a new trial.

Bryan & Middlebrooks, of Atlanta, and W. D. Buie and Jos. A. Alexander, both of Nashville, for plaintiff in error.

Little, Powell, Smith & Goldstein, of Atlanta, Wm. Story, of Nashville, and H. W. Nelson, of Adel, for defendant in error.

Syllabus Opinion by the...