Scott v. Moon

• Decision Date: 12 November 1925
• Citation: 130 S.E. 241
• Parties: SCOTT. v. MOON et al.
• Court: Virginia Supreme Court

130 S.E. 241

SCOTT.

v.MOON et al.

Supreme Court of Appeals of Virginia.

Nov. 12, 1925.

Error to Circuit Court, Albemarle County.

Action by F. C. Moon and another, late partners trading under the firm name of Moon & Pitts, against Edward W. Scott, Jr. Judgment for plaintiffs, and defendant brings error. Affirmed on condition plaintiffs relinquish part of judgment; otherwise reversed, with, new trial.

R. C. Blackford and Frank L. Thomasson, both of Lynchburg, and Homer Ritchie, of Charlottesville, for plaintiff in error.

Perkins, Walker & Battle, of Charlottesville, for defendants in error.

PRENTIS, P. Edward W. Scott, Jr., is here complaining of an adverse judgment in favor of Moon & Pitts, attorneys, hereinafter called the plaintiffs, for a balance claimed to be due them for fees in three cases. The plaintiffs claimed $3,450, and after a hotly contested trial there was a verdict and judgment in favor of the plaintiffs for $l, 800, with interest from January 23, 1923.

1. One of the defenses, stated generally, is based upon a claim that Pitts alone was employed, and that therefore the defendant owes nothing to the firm of Moon & Pitts.

It is only necessary upon this point to say that it very clearly appears from the admissions of the defendant, Scott, on the witness stand, and from his letters, that while his first interview was with Pitts, he then knew that Moon was his partner and associated with him in the practice of law; that he afterwards conferred with Moon frequently about these cases, knew that the pleadings were signed by Moon & Pitts, traveled with them from place to place in connection with the litigation, and paid Moon individually certain small amounts on account of fees therein, so that there can be no doubt whatever that he employed the plaintiffs, accepted their services in all three of these cases, and hence the jury could not have found otherwise upon this issue.

2. The defendant also claims, however, as to one of these cases—that is, the chancery suit instituted for him by them against the Shenandoah Life Insurance Company and others for the cancellation of certain large stock subscriptions, in which a fee of $3,000 was claimed—that the attorneys so neglected their duty to prosecute the case that he was forced to employ and pay other attorneys who finally compromised it.

It appears that Scott had subscribed to $29,250 of the capital stock of the Shenandoah Life Insurance Company, which had just beenorganized. He had given notes for the deferred payments on this stock subscription, the Staunton National Bank had acquired $7,000 of these notes, and had instituted an action against Scott on one for $1,500 which had matured. The chancery suit was brought to enjoin both the bank from prosecuting its action, and the life insurance company from instituting any other action on any of the notes which he had so given for its stock, to require the money that he had already paid to be refunded, to enjoin the insurance company from withdrawing any money which it had deposited in a bank at Esmont controlled and largely owned by Scott; and to set aside and annul the entire transaction between Scott and the insurance company. This suit was instituted in Albemarle county September 29, 1917. The preliminary injunction was granted as prayed for, but soon thereafter the Staunton National Bank having satisfied the court that it was a holder in good faith and for value of these notes of Scott, so much of the injunction as restrained the prosecution of the action of the bank was dissolved, but was in all other respects continued. This suit was not finally ended until nearly five years thereafter, September 6, 1922, at which time it was compromised. $10,740 in cash, with interest, was returned to Scott, and certain of his notes aggregating $10,500 were also returned to him. It appears from the testimony of the plaintiffs, as well as from the admissions of Scott, that substantially the same compromise had been tentatively arranged by the plaintiffs, through Moon with Andrews as a representative of the insurance company, two years previously, but Scott then peremptorily refused to consider it unless the insurance company would also pay his attorneys' fees.

There is testimony to the effect that the suit was not vigorously prosecuted by the plaintiffs during the two years referred to. Their defense is that this was in accordance with Scott's wishes, because there was at the same time in his bank at Esmont a large deposit upon which only 3 per cent, interest was being paid, while his claim against the company, if finally established, would bear interest at 6 per cent.

There is this striking confirmation of the claim that in the early stages of the litigation the chancery suit was delayed in accordance with the defendant's instructions. In answer to the question, "Was it to your advantage in any way to have the Shenandoah case delayed, or to the advantage of the bank (referring to the Esmont bank), Scott said:

"Well, it would have been to my advantage if they had kept the agreement, but that was one reason I got out. I didn't have confidence in them. If they had kept their original agreement, it would have been to advantage, but th, ey didn't keep their agreement as it happened" (the agreement referred to being the promise to keep a large amount deposited in Scott's Esmont bank).

Then as to the delay complained of, the defendant testified thus:

"Q. Mr. Scott, did you make complaint of the delay in the prosecution of the Shenandoah Life case?

"A I made complaint to this extent, that when I employed Mr. Lamar as leading counsel, and additional Virginia counsel, it showed I wanted to push the case, and I was dissatisfied. If I hadn't been dissatisfied, I wouldn't have done that, and I did it with the knowledge and consent of Mr. Pitts; and I presumed he knew why I did it. Certainly didn't do it for the fun of spending money."

It is observed in passing that the employment of Lamar in Washington as leading counsel, in June, 1919, and Farr thereafter as additional Virginia counsel, was long after the suit had been instituted.

Furthermore, as to this, the defendant testified:

"Q. You were speaking of the neglect of your counsel. Did your counsel neglect that Staunton Bank case?

"A. I don't think I have told you anything about neglect of counsel, Mr. Walker. I said this: When I employed Mr. Lamar and Mr. Lamar requested me to employ Mr. Farr, that I presumed that Mr. Pitts would understand that I wanted the case hurried up, because it had been going so slow. I don't think I have said anything in regard to neglect. I said neglect after Mr. Farr, and before Mr. Farr, that was a question between Mr. Pitts and Mr. Lamar. I wasn't in close touch. All I told Mr. Lamar as senior counsel was I wanted him to push it.

"Q. You have never said Mr. Pitts neglected the case?

"A. I don't think I have said it, on the witness stand.

"Q. And you don't say it now?

"A. I would prefer that if anybody criticizes Mr. Pitts' action in the case, let Mr. Lamar, senior counsel in the case, do so.

"Q. And you don't criticize Mr. Moon, do you?

"A. I don't know why I should criticize Mr. Moon. I never had any association with him.

"Q. Then on the witness stand and before the jury you say you have no criticism to make of Mr. Pitts, but would prefer it being made by Mr. Lamar?

"A. I have not yet.

"Q. Do you want to criticize him?

"A. I don't know why I should."

With these admissions in the record, it is manifest that the defense of neglect as a bar to the action is not supported, and clear that the plaintiffs were entitled to have the jury estimate the value of their services and, unless they had already been sufficiently paid, to find a verdict in their favor.

It would unduly prolong this opinion and serve no good purpose to attempt to review in detail the varied and variable statements of the witnesses on the controverted points in an opinion of reasonable length. It is sufficient to say that the only material issue which was involved was fairly submitted tothe jury under proper instructions, and their verdict, substantially reducing the fees claimed, is their response thereto.

It may be said in passing that in one of the cases, Scott v. Albemarle Horse Show Association, finally decided by this court in 128 Va. 517, 104 S. E. 842, a small balance is claimed by the plaintiffs. In the common-law action of the Staunton National Bank against Scott, a fee of $150 is here claimed, and does not appear to have been specifically paid. As to the Shenandoah Life Insurance Company case, it appears that both of the plaintiffs here had numerous interviews with Scott and with opposing counsel, went to Staunton, Lynchburg, Roanoke, Esmont, Washington, and Baltimore at various times; that they went to Richmond to examine the records in the office of the State Corporation Commission and the insurance commissioner, and they prepared and signed all. of the pleadings in the case. It is quite apparent, therefore,...