Rogers v. Fremder
| Citation | 261 S.W. 105 |
| Decision Date | 07 April 1924 |
| Docket Number | 22757 |
| Parties | ROGERS v. FREMDER |
| Court | Missouri Supreme Court |
Stephen C. Rogers and Richard A. Jones, both of St. Louis, for appellant.
Earl M Pirkey, of St. Louis, for respondent.
Statement.
This case has been reassigned to me, after it had been originally assigned to one of the commissioners, who became incapacitated by reason of sickness which prevented him from writing the case consequently in due course it was reassigned to me.
The plaintiff brought this suit in the circuit court of the city of St. Louis in equity to recover an attorney's fee, alleged to be due him from the defendant under the terms of a letter addressed by her to him, June 9, 1915, refused in the petition, and presently to be set out herein.
The trial resulted in findings for the defendant, and judgment for her was accordingly rendered. In due time and in proper form the case was appealed to this court.
The petition or bill of complaint reads as follows:
'Plaintiff states that on the 9th day of June, 1915, and for a long time prior thereto he was and now is a practicing attorney in the city of St. Louis, Mo., that on or about said 9th day of June, 1915, defendant was and now is the record owner of the following described property located in the city of St. Louis, Mo.: [Here follows a description of the property.]
'That on said 9th day of June, 1915, there was pending against this defendant and others a suit in equity brought to the April, 1915, term of the court and known as cause No. 95557 in division No. 2 of the circuit court, and styled, 'Lort Realty & Investment Company, a Missouri corporation, Plaintiff, v. Julian Realty & Building Co., a Missouri corporation, William F. Grampp, trustee, E. C. Cowen, Theresa Fremder, Charles Fremder, Sam Hamburg, Jr., trustee, and T. Wright, Defendants,' the object and purpose of which suit was to prevent a sale on the 2d day of February, 1915, of said property by the said Theresa Fremder under certain deeds of trust thereon owned by her and executed previously thereto by said Julian Realty & Building Company, and which sale at the time of the filing of such suit was then being advertised pursuant to the provisions of such deed of trust, and at which sale defendant became the purchaser of such property, and to declare such deeds of trust and notes null and void, have them produced and canceled, and to divest the title and interest of defendant in and to said property from her, and subject same to the lien of a judgment of plaintiff in said cause, the Lort Realty & Investment Company, against the Julian Realty & Building Company, and for various and sundry other equitable relief, including the appointment of receiver; that, in order to protect her interest, and have herself duly represented in said suit, the said defendant, on the 9th day of June, 1915, executed and delivered to plaintiff in writing, signed by her, an instruction and request to this plaintiff to take charge of and protect her interests involved in said cause No. 95557 and said property, and as a consideration therefor and for the services necessary in representing defendant therein the said defendant agreed to pay plaintiff, in the event of success therein, the one-half of, or an amount equal to a one-half interest in the value of, said property, and said property value was to be taken as of February 2, 1915; that in order to ascertain the value of said property on the 2d day of February, 1915, at such time as the compensation, if any, became due and payable to plaintiff under such agreement, there was to be charged against said property the amount of the balance, if any, due her by virtue of the two second deeds of trust, by and through which defendant acquired title to said property, together with the sum of $ 1,000 theretofore advanced by defendant to one E. C. Cowen, together with interest on said $ 1,000 at 6 per cent., compounded annually, from the time same was advanced to said 2d day of February, 1915; defendant was to collect the rents from said property from and after the 2d day of February, 1915, and thereout pay the necessary costs of interest, taxes, repairs, etc., and account to plaintiff for such rent so collected by her and for such payments or deductions made as hereinabove set out, which said writing so executed by defendant is filed herewith and marked Exhibit A; that the plaintiff undertook to and did render the necessary services in behalf of defendant in said cause as provided by the request or agreement hereinbefore set out, and that thereafter a successful termination of said cause No. 95557 was had, and the same was compromised, adjusted, and dismissed on or about the 20th day of December, 1916, and the judgment lien of said Lork Realty & Investment Company released, and the defendant thereby became and now is indebted to plaintiff for his services rendered as aforesaid; that defendant, agreeable to said request or agreement, undertook to and has been collecting and receiving the rents from said property continuously since the 2d day of February, 1915; that plaintiff is not advised or informed as to the amount of rents so collected by defendant; nor is this plaintiff advised or informed as to the amount, if any, paid out by defendant for interest, taxes, repairs, etc.; nor is this plaintiff advised or informed of the amount of the proceeds or money or property, if any, remaining in her possession or under her control at this time; that plaintiff is unable to state the amount of rent collected, paid out, or deducted either for rent, taxes, repairs, etc., or remaining in defendant's hands, but such facts and amounts are known to defendant; that plaintiff is not advised and has no knowledge of the amount, if any, due to defendant on the 2d day of February, 1915, on account of said second deeds of trust or the amount, if any, advanced by defendant to said Julian Realty & Building Company, but defendant knows all such facts and amounts; that plaintiff has on divers and sundry occasions demanded a statement or accounting of defendant, showing the amounts due defendant on account of said second deeds of trust and advancements, the amounts received, deducted, paid out, and remaining in her hands, but she has wholly failed, neglected, refused, and still refuses to make any statement or accounting to him, or to advise him of the amounts due as aforesaid, collected, deducted, paid out, and to whom, or the amount remaining in her hands; that defendant has failed, neglected, refused, and still refuses to pay plaintiff an amount equal to a one-half interest in or value of the property hereinbefore set out, or to convey a one-half interest therein to him, although requested so to do.
'Wherefore plaintiff prays that the court ascertain the value of said property on the 2d day of February, 1915; the balance then due defendant by virtue of said second deeds of trust; the amount due as compound interest on said loan of $ 1,000; deduct such amounts and said $ 1,000 therefrom; require the defendant to account to him as to the amount of rents collected from and after the 2d day of February, 1915; the amount paid out for interest, taxes, repairs, etc., or for any other purpose; that the amount due plaintiff be ascertained, and a lien therefor on the said property of defendant be decreed; that the court will find, adjudge, and decree defendant to be holding a one-half interest in said property in trust for him from and after the 2d day of February, 1915; that defendant be required to convey to him a one-half interest in said property by proper deed; that pending this suit; and until the decree is finally complied with, this court appoint a receiver to collect said rents and pay the necessary expenses and care for said property; that interest be allowed him for the amount due him, and for such other and further relief as to the court may seem meet, just, and proper, and for costs.'
The letter written by the defendant to plaintiff dated June 9, 1915, and referred to in the petition, is as follows:
'Please take charge of my interest in the case of Lort Realty & Investment Company now pending in the circuit court of the city of St. Louis, Mo., and being known as No. 95557, room 2, and I agree as a consideration for the services necessary in representing me therein to pay you, in the event you are successful in my behalf or I am successful therein, an amount equal to a one-half interest in the value of the property (value as of date February 2, 1915), after I am repaid the amount I have advanced the company, with interest, including an additional $ 1,000 which was advanced to Mr. E. C. Cowen, together with interest thereon from the date of such advancement at 6 per cent. per annum, compounded annually, and this payment shall be of date February 2, 1915, so that I shall account to you for the income of said property, less the necessary costs of interests, taxes, repairs and such from said February 2, 1915.
'Very truly yours,
Theresa Fremder.'
The answer filed by defendant is as follows:
'Comes now defendant, and by leave of court first had and obtained files this her amended answer, and for her amended answer to plaintiff's amended petition herein denies every allegation therein contained, except her ownership of property described in the petition, and that plaintiff is and was a practicing attorney in this city, and that he performed work in certain law suits.
'Further answering, defendant says that plaintiff has been paid for all the legal services he performed.
'Further answering, this defendant says that the alleged contract alleged by plaintiff was a paper signed by this defendant while plaintiff was in her service,...
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