Payne v. Clark

• Citation: 220 N.W. 262,117 Neb. 238
• Decision Date: 22 June 1928
• Docket Number: 25681
• Parties: CATHERINE M. PAYNE, APPELLANT, v. OSCAR B. CLARK, APPELLEE
• Court: Supreme Court of Nebraska

220 N.W. 262

117 Neb. 238

CATHERINE M. PAYNE, APPELLANT, v. OSCAR B. CLARK, APPELLEE

No. 25681

Supreme Court of Nebraska

June 22, 1928

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.

AFFIRMED.

R. S Mockett, H. W. Baird and Francis V. Robinson, for appellant.

Comstock & Comstock, contra.

Heard before GOSS, C. J., ROSE, DEAN, THOMPSON, EBERLY and HOWELL JJ., and REDICK, District Judge.

OPINION

GOSS, C. J.

This is an action at law by plaintiff to recover of the defendant on three causes of action for money alleged to have been collected and retained by him while acting as her attorney and for certain damages alleged against him. Defendant filed answer and cross-petition praying for judgment for services rendered in addition to those for which compensation had already been received by him. The jury returned a verdict for plaintiff for one dollar and found against defendant on his cross-petition. From an order overruling her motion for a new trial and entering judgment on the verdict, the plaintiff appealed.

The appellant and appellee sustained the relation of client and attorney for nearly three years prior to July 18, 1922, when that relation ceased. He brought and conducted the suit for divorce against her husband in the district court, where she was unsuccessful, and on appeal in this court, where the cause was reversed by an opinion by the commission, adopted August 8, 1921, directing a judgment for absolute divorce and for alimony in the sum of $ 25,000, payable in ten equal annual installments with interest at 6 per cent. In addition thereto, her attorney was allowed a fee of $ 1,500 in addition to all other allowances, to be taxed as costs. The total allowances for attorney's fees appear to have been $ 1,800. After the judgment was entered as directed, the attorney continued to represent the client in matters relating to the collection of her judgment and in the investment of the proceeds of her divorce suit, until July 18 or 19, 1922, when differences arose between them over money matters and he was discharged. In her first cause of action she charged that he had collected and received a total of $ 1,800 as attorney's fee allowed in both courts, that he had retained $ 500 as fees out of a $ 2,000 collection on her account on August 13, 1921, and $ 4,665.24 on or about March 22, 1922; that said amounts were obtained by fraud, deceit and bad faith on defendant's part, and that the total of $ 6,965.24 constitute an excessive charge for services, by reason of which she prayed for treble damages on the alleged fraudulent items, or a total of $ 15,948.27, with interest on the first cause. For her second cause of action she alleged that on December 1, 1921, the defendant collected $ 500, part payment on a $ 2,000 note given as evidence of that sum loaned for her out of a collection of $ 2,500 on her alimony judgment on August 13, 1921. On that she asked $ 523.33 with interest. Her third cause of action was based on the charge that the defendant refused her demands made July 19 and 20, 1922, to surrender to her a will drawn for her by him in June or July, 1921, claiming he had delivered it to her soon after its execution. For this she prayed judgment for $ 25, as the reasonable cost of drafting another will.

The defendant joined issues by answer and cross-petition. He alleged the engagement by her on and prior to November 21, 1919, to procure a divorce and alimony from her husband, as well as to recover the possession of certain property she owned; that she represented she had no money to pay costs and attorney's fees and that she would, upon obtaining funds, amply and generously compensate him for his services and would reimburse him for advances; that he undertook said work, relying on said promise, and secured the reversal in the supreme court of the judgment of the trial court; that thereafter plaintiff assigned to defendant an amount equal to an interest of 20 per cent. of her recovery in the divorce action and authorized him to collect and enforce the payment; that he brought an equitable action to recover property in Douglas county and secured a settlement on the basis of plaintiff's claim; that he negotiated agreements with regard to several properties in the interest of the plaintiff, advanced upwards of $ 1,100, which plaintiff has refused to pay. Defendant traverses the various allegations of the petition, sets up items claimed to be due him amounting to $ 4,074.88, and prays for an accounting and for judgment. The result was as stated at the beginning of this opinion.

The evidence is voluminous and it is a law case. It was submitted to the jury on conflicting evidence. It will suffice to state such of the evidence as appears necessary in a discussion of the errors assigned.

The 124 errors set up in the motion for new trial have been reduced to 22 in the assignment of errors in the brief of appellant. The first one relates to the second instruction given to the jury in the following language:

"Under the law and the evidence in this case it appears beyond dispute that the defendant received from the plaintiff on and before the 24th day of March, 1922, money and property of the value of $ 5,165.24 as an attorney's fee in the case of Payne v. Payne, and that he was not entitled to the same because he was fully paid for his services by award of fees made him in the supreme court, and because in any event the contract and assignment upon which he took the said $ 5,165.24 was void as against public policy unless said fee was given defendant by the plaintiff as an honorarium with full knowledge on her part that she was under no legal obligation to let him have the same and was in full...