Robert v. Davis

• Decision Date: 11 September 1940
• Docket Number: No. 25341.,25341.
• Citation: 142 S.W.2d 1111
• Parties: DOUGLAS W. ROBERT, RESPONDENT (PLAINTIFF), v. JOSEPH T. DAVIS, APPELLANT (DEFENDANT).
• Court: Missouri Court of Appeals

142 S.W.2d 1111

DOUGLAS W. ROBERT, RESPONDENT (PLAINTIFF), v. JOSEPH T. DAVIS, APPELLANT (DEFENDANT).

No. 25341.

St. Louis Court of Appeals, Missouri.

Opinion filed September 11, 1940.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Joynt, Judge.

REVERSED AND REMANDED.

M.G. Baron, E.W. Fredrickson, Victor A. Wallace and Joseph T. Davis for appellant.

(1) A suit for an accounting in itself is not an equitable action and, without special facts, does not give court of equity jurisdiction. State ex rel. v. Southern, 229 Mo. App. 749, 83 S.W. (2d) 162; Bennett v. Crane, 220 Mo. App. 607, 289 S.W. 26; Palmer v. Marshall, 24 S.W. (2d) 229; Dahlberg v. Fisse, 40 S.W. (2d) 606; Johnston v. McCluney, 80 S.W. (2d) 898. (2) If plaintiff established any relationship with defendant, it is solely that of employee-employer, and this will not give the court of equity any jurisdiction of the cause. Kersey v. O'Day, 173 Mo. 560; California Raisin Growers' Association v. Abbott, 160 Cal. 601, 117 Pac. 767; Johnston v. Berlin, 71 N.Y.S. 454; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W. (2d) 606.

Richard T. Brownrigg for respondent.

Douglas W. Robert, Pro Se.

(1) (a) Equity has exclusive jurisdiction of a suit for accounting between partners if there has been no settlement of the partnership affairs. Scott v. Caruth, 50 Mo. 120; Willis v. Barron, 143 Mo. 450; State ex rel. Cockrum v. Southern, 229 Mo. App. 749; 1 C.J. Sec., p. 646-7; 5 Pomeroy Eq. Juris. (2 Ed.), secs. 2358, 2362. (b) Appellant cannot raise the question of adequate remedy at law here. He did not raise it below. Platte Valley Bank v. Bank, 14 S.W. (2d) 12. (c) As the partnership business had not been settled, the plaintiff had no right to sue at law. Hence plaintiff had no "adequate remedy at law." Strothert v. Knox, 5 Mo. 112; Scott v. Caruth, 50 Mo. 120; Bond v. Bemis, 55 Mo. 524; Glaus v. Gosche, 118 S.W. (2d) 42. (2) Pomeroy v. Benton, 57 Mo. 531; Filbrun v. Ivers, 92 Mo. 388; Scott v. Thompson, 222 S.W. 115; Hedges v. Wear, 28 Mo. App. 575; 20 Ruling Case Law, pp. 802, 1013; 47 C.J., p. 771, sec. 209; State ex rel. Cockrum v. Southern, 229 Mo. App. 607; Johnston v. McCluney, 80 S.W. (2d) 898; Pomeroy Eq. Jurisprudence (2 Ed.), sec. 2358; 1 Corp. Jur. Sec., p. 657. (3) Henry v. Bassett, 75 Mo. 89; Creason v. Deatherage, 325 Mo. 661; Neville v. D'Oench, 327 Mo. 34; Hobart-Lee Tie Co. v. Grodsky, 329 Mo. 706; State ex rel. Cockrum v. Southern, 229 Mo. App. 749; Hereford v. Meserve, 272 Fed. 253; Ross v. Willett, 27 N.Y. Supp. 785; Underwood v. Overstreet (Ky.), 223 S.W. 152; Harris v. Flournoy (Ky.), 38 S.W. (2d) 10; 20 Ruling Case Law, pp. 1011-12; 1 C.J. Sec., pp. 646, 647, 657. (4) (a) A partnership or joint adventure need not be established by express agreement. It may be established from the facts and circumstances and conduct of the parties: — Neville v. D'Oench, 327 Mo. 34; Burrows v. Lasswell (Mo. App.), 108 S.W. (2d) 705; Hudson v. French (Mo. App.), 241 S.W. 443; Priest v. Chouteau, 85 Mo. 398; Jones v. Stever, 154 Mo. App. 640; Hindman v. Secoy, 218 S.W. 416. (b) A licensed attorney, who has appeared for a party, is presumed to have had authority to act. The burden of disproving such authority is upon the party questioning it. Such cannot be done collaterally. Johnson v. Baumhoff, 322 Mo. 1017; Riley v. O'Kelly, 250 Mo. 647. (c) When there is no contract of partnership, the court will look to the entire transaction to determine the intention of the parties. Mulhall v. Cheatham, 1 Mo. App. 476; Swope v. Leffingwell, 4 Mo. App. 525; affd. 105 U.S. 3; Hindman v. Secoy (Mo. App.), 218 S.W. 416; Royle Mining Co. v. Casualty Co., 161 Mo. App. 185; Beller v. Murphy, 139 Mo. App. 663; 20 Ruling Case Law, sec. 36, p. 832. (d) Mere delay in filing suit is not a defense unless the party plead laches and has been prejudiced thereby. Pryor v. Kopp (Mo.), 119 S.W. (2d) 228; Breneman v. The Laundry (Mo.), 87 S.W. (2d) 429; Hecker v. Bleish, 319 Mo. 149. (5) Agreement to share fee. Creason v. Deatherage, 325 Mo. 661; Henry v. Bassett, 75 Mo. 89; Hereford v. Meserve, 272 Fed. 353; Harris v. Flournoy (Ky.), 38 S.W. (2d) 10; Underwood v. Overstreet (Ky.), 223 S.W. 152; 7 C.J. Sec., p. 1038, sec. 174; Tower v. Moore, 52 Mo. 118; Callahan v. Shotwell, 60 Mo. 398; Kessner v. Phillips, 189 Mo. 515; Niel v. Granger (Mo.), 177 S.W. 644; Gann v. C.R.I. & P. Ry., 319 Mo. 314; State v. Brown (Mo.), 134 S.W. (2d) 28; Dinkelman v. Hovekamp (Mo.), 80 S.W. (2d) 681; Austin v. Cooperage Co. (Mo. App.), 285 S.W. 1015; Platt Valley Bank v. Bank, 14 S.W. (2d) 12; Owsley v. Owsley (Mo. App.), 34 S.W. (2d) 558; Scofield v. Ins. Co., 227 Mo. App. 166; State ex rel. v. Shain, 341 Mo. 201; Gwaltney v. K.C. Sou. Ry., 329 Mo. 249; Lechner v. City of St. Louis (Mo. App.), 121 S.W. (2d) 242; Tower v. Moore, 52 Mo. 118; Green v. St. Louis, 106 Mo. 454; Bensieck v. Cook, 110 Mo. 173; City of St. Louis v. United Rys., 263 Mo. 387; White v. Kentling, 134 S.W. (2d) 39; Barrett v. Stoddard Co., 183 S.W. 644; Pluard v. Gerrity, 146 Ill. App. 224; Sec. 1062, R.S. Mo. 1929; Lester v. Tyler (Mo.), 69 S.W. (2d) 633; Montayne v. Hatch, Admr., 34 Ill. 394; State v. Scott, 214 Mo. 257; Maplegreen Co. v. Trust Co., 237 Mo. 350; Polski v. St. Louis, 264 Mo. 458; Lolordo v. Lacy, 337 Mo. 1097; Osage Tie Co. v. Timber Co. (Mo. App.), 191 S.W. 1026; Fruit Supply Co. v. R.R. Co. (Mo. App.), 119 S.W. (2d) 1010; Globe Corporation v. Miller (Mo. App.), 131 S.W. (2d) 340; Melenson v. Howell (Mo.), 130 S.W. (2d) 555; Lorlodo v. Lacy, 337 Mo. 1097; Crowell v. Metta, 213 Mo. App. 683; Robinson v. Field (Mo.), 117 S.W. (2d) 308; Liflander v. Bobbitt (Mo.), 111 S.W. (2d) 72; Creason v. Deatherage, 325 Mo. 661; Campbell v. Boyer, 241 Mo. 421; Jones v. Stever, 154 Mo. App. 640; Panich v. Curtis Corp. (Mo. App.), 124 S.W. (2d) 619; Expansion Realty Co. v. Geren, 185 Mo. App. 440; Lawless v. Lawless, 47 Mo. App. 523; Field v. Holland, 6 Cranch 8; 3 Law. Ed. 136; Dewberry v. Bank of Standing Rock, 227 Ala. 484; Shanklin v. Mosley (Tex.), 287 S.W. 121; Fox v. Hall, 164 Cal. 287; Smith v. Smith, 101 N.Y. Supp. 521; Montayne v. Hatch, 34 Ill. 394; Ohlendorf v. Bennett, 241 Ill. App. 537; 10 Ruling Case Law, sec. 291, p. 510; 1 C.J., p. 644, sec. 131.

BENNICK, C.

This is a suit between two attorneys relative to the division and payment of a fee for professional services rendered by such attorneys in connection with a controversy and ensuing litigation between one Edward F. Goltra, of the City of St. Louis, and the War Department of the United States Government, over the cancellation of a lease by which certain boats and barges had been leased to Goltra by the War Department in 1919.

In his petition, plaintiff alleged that in March, 1923, he and defendant were jointly employed by Goltra to prosecute a suit to restrain certain officials of the United States Government from interfering with Goltra's possession of the boats and barges in question; that he and defendant, together with one Charles Claflin Allen, also an attorney-at-law, did jointly prosecute said litigation up to a point in December, 1923, when the Supreme Court of the United States denied a writ of prohibition which had been sought by the Government; that at said time Goltra paid to each of the three attorneys the sum of $1,000 for legal services rendered up to that point; and that at that time Allen withdrew from any further connection as an attorney in the case.

It was further alleged that following Allen's withdrawal from the case, plaintiff and defendant continued to prosecute said litigation jointly, and to its final conclusion, in the United States District Court for the Eastern Division of the Eastern Judicial District of Missouri, the United States Circuit Court of Appeals for the Eighth Circuit, and the Supreme Court of the United States; that thereafter plaintiff and defendant were desirous of having an agreement with Goltra as to the fee to be paid for the professional services of plaintiff and defendant; that it was agreed between plaintiff and defendant that, owing to the fact that defendant was acting as attorney for Goltra in other legal matters, and was his general counsel, defendant should alone conduct the negotiations with Goltra for such agreement, with full authority to act for both plaintiff and defendant with respect to the amount of the fee, the terms of payment, and the collection of the money from Goltra; and that plaintiff was to abide by the amount and terms of any agreement reached.

Plaintiff then alleged that he had no information as to the amount of the fee agreed upon between defendant and Goltra, save for information given him orally by defendant, and charged the fact to be, upon the basis of such information, that in April, 1926, defendant entered into an agreement with Goltra whereby Goltra agreed to pay for legal services jointly performed by plaintiff and defendant after December, 1923, the sum of $35,000, the same to be paid in installments, with each installment evidenced by a promissory note executed by Goltra and made payable to defendant; that such notes were thereafter delivered by Goltra to defendant; and that plaintiff had never been informed by defendant of their respective terms, although he had often requested such information from defendant.

It was then alleged that it was agreed between plaintiff and defendant that such sum of $35,000 was satisfactory as a fee for their services; that plaintiff and defendant should each receive one-half of such sum; and that in compliance with such agreement, defendant paid to plaintiff the sum of $3,000 as his one-half of the total amount of $6,000 collected by defendant from Goltra between April, 1926, and September, 1926.

Plaintiff further alleged that thereafter, in October, 1928, plaintiff and defendant agreed that of the remaining sum due from Goltra, defendant should have fifty-five per cent, and plaintiff, forty-five per cent; and that between ...