Neeper v. Heinbach

• Decision Date: 06 February 1923
• Docket Number: No. 17592.,17592.
• Citation: 249 S.W. 440
• Parties: NEEPER v. HEINBACH.
• Court: Missouri Court of Appeals

249 S.W. 440

NEEPER v. HEINBACH.

No. 17592.

St. Louis Court of Appeals. Missouri.

February 6, 1923.

Appeal from Circuit Court, Rails County; C. T. Hays, Judge.

"Not to be officially published."

Action by Leigh A. Neeper against Mary Alice Heinbach, a person of unsound mind, by J. B. Megown, her guardian, and another. From judgment for plaintiff, defendants appeal. Reversed, and remanded for new trial.

B. B. Megown, of New London, Hostetter & Haley, of Bowling Green, and Stout & Watson, of New London, for appellants.

Schofield & Plowman, of Hannibal, for respondent.

BIGGS, C.

An action by plaintiff, widow of Frederick W. Neeper, a deceased lawyer of the Marion county bar, founded upon a written contract for legal services between said Neeper and the defendant Mary Alice Heinbach. Plaintiff's right to sue is conceded. An attorney's lien is sought upon certain real estate, and by reason of the defendant Eluphemia Belle Koller acquiring an interest in such property after the execution of the contract sued on and with knowledge thereof (which is also conceded), she is made a party defendant.

The petition was in two counts, one upon a written contract, and the other upon a quantum meruit. The quantum meruit count was abandoned at the trial, and the cause submitted upon the first count, which, after alleging that Frederick W. Neeper was a duly licensed attorney and counselor of the Marion county bar, practicing in the courts of the state, states that on May 9, 1910, defendant Mary Alice Heinbach contracted and agreed with said Frederick W. Neeper that said Neeper should represent her as attorney or counselor in certain litigation then pending, or afterwards to be brought in the probate court or the circuit court of Halls county, Mo., wherein the defendant Mary Alice Heinbach sought to require the admittance to probate the will of her husband, Samuel H. Heinbach, in which she was named as principal beneficiary; that said will had previously been refused admittance to probate by the probate court; and that, as compensation in the event said defendant was successful in requiring the will to be probated, then she would pay to said Neeper $750; and, if an appeal should be taken in said litigation to the appellate court, then said Neeper should receive $250 additional for his said services, and also he should receive all expense incurred by him in and about said litigation.

It is further alleged that said Neeper represented the defendant in said litigation and performed said contract on his part, and did and complied with everything required of him to be done in and about the conduct of said cause, that the cause was afterwards appealed to the appellate court, and that in said latter court said Neeper continued his services and duly and fully represented the defendant therein, and that by means of all thereof said cause was finally decided in favor of defendant Mary Alice Heinbach, and said will was duly admitted to probate.

The written contract signed by both parties was in tenor and effect as alleged in the petition. It, however, contained a provision to the effect that said Neeper agreed to devote all the time that may he necessary for the proper conduct of said suit, and to use his best skill and judgment in the same, and to incur no expense, unless the same is in his opinion materially necessary to the successful issue of said suit, and to do all things that are incumbent upon him as an attorney at law, and to perform all services that can be expected of him in an honorable and conscientious manner.

After the filing of a general denial, the cause was submitted to a jury, which returned a verdict for plaintiff for $1,000. The court rendered a judgment based on the verdict, and made same a lien on certain real estate to which defendant obtained absolute title by reason of the successful probate of the will of her husband, and which resulted from the litigation referred to in the contract in suit. Pending the motion for new trial, Mrs. Heinbach was adjudged to be a person of unsound mind, and J. E. Megown was appointed her guardian. His appearance was entered in the cause, and by consent of parties the cause was revived against him as such guardian. Defendants appeal.

There were two trials of the suit to establish the will of defendant's husband in the circuit court and two appeals to the Supreme Court. In the first trial in the Halls county circuit court the will was rejected. Upon appeal the cause was remanded for a new trial. Heinbach v. Heinbach, 262 Mo. 69, 170 S. W. 1143. Thereupon the venue was changed to Pike county, where, upon a second trial, the will was established and ordered probated. On the second appeal to the Supreme Court, the judgment was affirmed. 274 Mo. 301, 202 S. W. 1123.

Shortly before the first trial in the circuit court additional counsel was brought into the case, under a contract between Mrs. Heinbach and such counsel, separate and apart from the contract in suit. When the ease reached the Pike county circuit court for the second trial, local counsel were likewise employed by Mrs. Heinbach.

The evidence fully warranted a finding to the effect that Mr. Neeper performed all services required of him by the contract, with the exception that, on the second appeal of the case, he took no part in the preparation of the brief or in the oral argument of the cause, but his failure to perform such service was due to acts of Mrs. Heinbach in dismissing him without cause.

There having been a prevention of full performance by the acts of Mrs. Heinbach, Mr. Neeper, having been ready and willing to perform, could recover as...