Remmers v. Bromschwig

• Decision Date: 21 June 1929
• Docket Number: No. 20795.,20795.
• Parties: REMMERS v. BROMSCHWIG et al.
• Court: Missouri Court of Appeals

18 S.W.2d 115

REMMERS v. BROMSCHWIG et al.

No. 20795.

St. Louis Court of Appeals. Missouri.

June 21, 1929.

Rehearing Denied July 2, 1929.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Harry Remmers against Clara Bromschwig and others. From the judgment, named defendant appeals. Affirmed.

William J. Doherty, of St. Louis, for appellant.

Watts & Gentry, of St. Louis, for respondent Wm. L. Bohnenkamp.

BENNICK, C.

This is an appeal by Clara Bromschwig, one of the defendants in a certain receivership proceeding, from the finding and judgment of the circuit court as to the amount of attorney's fees to be paid out of her share of the funds in the hands of the receiver to William L. Bohnenkamp, an attorney at law, for legal services rendered by him to her, both in the receivership, and in an action for an accounting brought in the same court and involving the same parties.

In the action for an accounting, in which appellant was a party plaintiff, judgment was obtained for plaintiffs for the sum of $26,417.35 and interest, of which her share was $10,651.96. By written agreement of all the parties in interest in the two proceedings, and by an order of court duly entered of record, the judgment rendered in the accounting suit was certified to the receivership case, and the receiver was ordered to satisfy that judgment out of the assets in his hands. Compliance with such order required the payment to appellant of the sum of $10,651.96, and the payment of the further sum of $1,000 due her in her capacity as testamentary trustee of one Joseph Remmers.

Subsequently, the receiver filed his application for a further order respecting the making of the payments to appellant, and alleged therein that appellant had demanded payment of the above sums in full; that Bohnenkamp, her attorney of record, had declared that he, as her attorney, had a lien upon, and an interest in, such sums for the reasonable value of his services; and that appellant had denied that Bohnenkamp had such a lien, but had insisted that he had been employed by her under an express contract for the payment of a stipulated sum, which contract appellant professed herself ready, able, and willing to perform on her part. The receiver prayed the court that appellant and Bohnenkamp be required to come into court and present their respective claims, and that the court specifically direct him how and to whom to pay over the sums in his hands.

The court thereupon set aside its order theretofore made, and ordered the claimants to submit their respective claims for determination, as prayed by the receiver. A hearing was had upon the issues joined, and in due course a judgment was rendered, ordering the receiver to pay to Bohnenkamp the sum of $3,000, in full satisfaction of all claims for legal services rendered by him in appellant's behalf. A motion for a new trial was filed and overruled, and appellant has duly perfected her appeal to this court.

Appellant has eleven assignments of error, all of which in one way or another go to the question of whether the amount of Bohnenkamp's recovery had been fixed by the terms of a written contract, save for the point, which will be adverted to in due course, that Bohnenkamp had served and received compensation from interests adverse to those of his client, and had thereby forfeited his right to receive compensation from her.

At the taking of testimony it was shown that shortly after the inception of the litigation in which appellant and her husband, Herman Bromschwig, were made parties, they consulted Bohnenkamp in his professional capacity, and also discussed with him the question of his fee, culminating in the exchange of letters between the parties, reading as follows:

"St. Louis, Mo., June 11, 1923.

"Mr. Herman H. Bromschwig & Mrs. Clara Bromschwig — Dear Mr. and Mrs. Bromschwig: Pursuant to my conversation with Mr. Bromschwig in connection with my fee for handling the case of Harry Remmers et al. v. College Hill Press Brick Works et al., No. 60,006, which is now appealed to the Supreme Court of Missouri, I hereby state to you that I will handle same for the sum of five hundred ($500.00) dollars, you to pay this amount in any event, whether we be successful or not successful in the prosecution of said case, and you to pay said amount in any event, whether the same is prosecuted to a conclusion or is compromised and settled before a conclusion.

"As Mrs. Bromschwig's claim against the College Hill Press Brick Works growing out of the residue of her father's will is somewhat interwoven with the above styled cause, I also state to you that I will look after Mrs. Bromschwig's interest as to that claim for the above fee.

"However, as the above charge for said services are rather low, I shall expect in turn for you to pay me a larger fee in the event that I shall be successful in the prosecution of said above styled cause and also successful in the prosecution of the claim of Clara Bromschwig against the College Hill Press Brick Works. Trusting that this matter may meet with your approval, I remain,

                    "Yours very truly
                                   "Wm L. Bohnenkamp."
                

"St. Louis, Mo., June 12th, 1923.

"W. L. Bohnenkamp: Yours of the 11th inst. duly received. Your offer to handle the case of Harry Remmers et al. v. College Hill Press Brick Works et al. No. 60006 which is now appealed to the Supreme Court of Missouri and to handle Mrs. Bromschwig's claim against the College Hill Press Brick Works growing out of the residue of her father's will, which you say is interwoven with the above-styled cause, for the sum of $500, Five Hundred Dollars, is satisfactory to us and is hereby accepted.

                                     "Clara Bromschwig
                                     "H. Bromschwig."
                

Nothing further seems to have been said or done about the question of a fee, except that a payment of $50 was made by appellant on account; and Bohnenkamp proceeded thenceforth to represent his client in both suits, and admittedly performed the services contemplated in his employment.

The position of appellant in this controversy is that the letter of Bohnenkamp, and the answering letter of herself and her husband, constituted a binding contract...