Philbrook v. Moxey
| Decision Date | 02 March 1906 |
| Citation | 191 Mass. 33,77 N.E. 520 |
| Parties | PHILBROOK v. MOXEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo R. Swasey and Hiram Tuell, for plaintiff.
Jeremiah Smith, Jr., and Malcolm Donald, for defendant.
This is an action by an attorney at law to recover for professional services rendered to the defendant and upon a written agreement signed by the defendant. Both parties are residents of San Francisco, Cal.
At the trial in the superior court before a judge without a jury it appeared that the defendant was married to his present wife in San Francisco in July, 1902; that while they were engaged to be married, she deeded to him real estate of large value situated on Summer street in Boston and in California; and that various suits were afterwards brought against him and his wife in California, to recover alleged debts due from him, to have his wife declared incompetent to manage her property, and to have a guardian of her property appointed, and the deeds which she had given to him cancelled; and that a petition had been filed in the probate court for the county of Suffolk in this commonwealth to have his wife put under guardianship on the ground of insanity. While these suits were pending, the defendant and his wife being represented in them by various other counsel, and after an opinion had been filed by the California court in one of the suits declaring Mrs. Moxey incompetent to manage her property, the defendant employed the plaintiff, saying that he wanted these suits settled. There was evidence that the plaintiff attended hearings in these suits in the California courts, and rendered other services to the defendant in them which are stated in the testimony; that he attempted to arrange a settlement, and, by April 16, 1903, had agreed with one of the counsel who were prosecuting those suits on terms of settlement which that counsel assured him would go through. On that day, the defendant, at the request of the plaintiff, signed a letter authorizing the plaintiff to settle the cases pending against the defendant and his wife on terms therein stated in detail, and promising to pay to the plaintiff 'for your service heretofore rendered to my said wife or myself for negotiating and helping to effectuate the said contemplated settlement the sum of $10,000 as soon as the said settlement is made and carried into effect.'
There was evidence that immediately after this some difficulties arose that prevented the immediate making of the settlement and this letter was given up, and the following paper was signed by the defendant, being the contract declared on in the plaintiff's declaration: The plaintiff rendered further services in endeavoring to procure a settlement after this paper was signed.
In May 1903, a new suit was brought against the defendant by a guardian of his wife appointed in California, to set aside the deeds which she had given to the defendant. The plaintiff testified that soon after this, the defendant told the plaintiff he did not now wish to make any settlement, but preferred to contest the cases. The plaintiff said that he had been employed to make a settlement, and declined to take part in a contest. Thereupon the defendant forbade him to make any settlement. The defendant testified that after the suit of May, 1903, was brought, the plaintiff told him that no settlement could now be made and the defendant would have to get other counsel; that the plaintiff could not appear in court to contest the cases. After this the plaintiff did nothing more for the defendant. He never appeared as attorney of record in any of the cases for the defendant and his wife. He testified that apart from the contract his services were fairly worth $10,000. There was evidence that after the plaintiff had wholly ceased to act for the defendant the terms of a settlement were arranged between other counsel...
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