Shultz v. Jones

• Decision Date: 17 September 1928
• Parties: SAM L. SCHULTZ, RESPONDENT, v. L. R. JONES, APPELLANT. [*]
• Court: Missouri Court of Appeals

9 S.W.2d 248

223 Mo.App. 142

SAM L. SCHULTZ, RESPONDENT, v. L. R. JONES, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

September 17, 1928

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Smith & Zimmermann, John M. Dalton and L. R. Jones for appellant.

Hal H McHaney and John McAnally for respondent.

BAILEY J. Cox, P. J., concurs and Bradley, J., not sitting.

OPINION

BAILEY, J.

This is suit by the assignee of an attorney's contract to recover one-half of an attorney's fee alleged to have been collected by defendant, a co-counsel. On trial to a jury plaintiff succeeded in obtaining a verdict and judgment in the sum of $ 305.23, from which judgment defendant has appealed.

In his petition plaintiff alleged that John McAnally (the assignor) and L. R. Jones (defendant) were duly qualified and practicing lawyers of Dunklin county and obtained a contract from one Joe Williams to bring and prosecute a suit in his behalf against one W. R. Hall, for which said attorneys were to receive as compensation one-half the amount recovered in said action; that suit was instituted and judgment rendered against Hall in the sum of $ 1048; that the judgment was paid to L. R. Jones, April 27, 1926, amounting at the time to $ 1220.92; that the amount belonging to John McAnally was $ 305.23; that McAnally assigned all his rights in said judgment to plaintiff; that after the judgment was paid defendant refused to pay plaintiff said sum of $ 305.23, for which judgment is prayed. The answer was a general denial.

The trial court's action in overruling defendant's demurrers to the evidence is assigned as error. The evidence most favorable to plaintiff discloses that about the year 1918, one Joe Williams employed John McAnally, a lawyer, to bring suit against a certain W. R. Hall and J. P. Hampton and that McAnally was to receive a contingent fee of one-half of whatever amount he recovered; that later, defendant, also an attorney at law, was taken into the case and was to share equally with McAnally in his one-half contingent fee; that a judgment was obtained against Hall and Hampton but on appeal to this court was reversed and remanded (230 S.W. 126); that thereafter a new suit was filed and, on change of venue, was tried in Cape Girardeau county where a judgment was obtained in the sum of $ 1048; that on appeal from an order sustaining a motion for new trial to the St. Louis Court of Appeals, the verdict and judgment was ordered reinstated (261 S.W. 938). This is the judgment upon which the present suit is based. The evidence further tends to show that McAnally assigned his interest in the judgment to plaintiff and that thereafter, about January 26, 1926, the certified copy of the judgment against Hall and Hampton, on file in the circuit clerk's office in Dunklin county, was satisfied on the record by defendant.

It further appears that Hampton was at all times insolvent while this protracted litigation was pending; that Hall, during the same period, had disposed of all his property and, in particular, had conveyed three separate pieces of real estate; that McAnally and defendant had considered ways and means of collecting the judgment against Hall and finally decided, according to McAnally, to sell these three pieces of property under execution on the judgment and then bring suit to set aside the conveyances made by Hall, as fraudulent. It is conceded that defendant, with the consent of Joe Williams, in whose name the Hall judgment stood, got out an execution against these three pieces of real estate and, at the execution sale, Joe Williams became the purchaser of said property for the nominal sum of $ 50, the sheriff's deeds being made to him; that defendant, on behalf of Williams, and by virtue of written contracts authorizing him to do so, then brought three separate suits to set aside the three deeds theretofore executed by Hall conveying said real estate. For his services in bringing these suits it was agreed between defendant and Williams that defendant should have one-half of any amount recovered in these suits. It seems that after these three suits were filed by defendant, as attorney for Williams, a compromise was effected by the terms of which the three suits were dismissed and Williams made quitclaim deeds to the properties. In consideration therefor Williams received $ 483.65 in cash and ten shares of bank stock of the par value of $ 1000. The actual value of this bank stock is not shown, but sometime after the settlement was made the bank failed and the stock became worthless.

The evidence further shows that in the settlement of the suits to set aside the deeds, defendant and Williams took into consideration the amount of the original judgment against Hall and in addition such other expenses as had been incurred by Williams in connection with the Hall litigation. Williams refused to accept the bank stock, but the stock was taken over by defendant who paid Williams the difference in cash. In doing this it became necessary for defendant to give Williams his check for $ 334.39. This check was offered in evidence by defendant and notations thereon tend to show the Hall judgment was involved in the settlement.

On the day the settlement was made defendant, at the request of the attorney for Mr. Hall, entered a satisfaction of the certified copy of the Hall judgment on the judgment records of Dunklin county. It is defendant's contention this satisfaction was entered as a mere afterthought and was not involved in the settlement; that the money was paid Williams and the bank stock turned over for the sole purpose of getting the three suits to set aside the Hall deeds dismissed, and that the Hall judgment and expenses in connection with that litigation were used merely as a basis for settlement; that in any event plaintiff would be entitled to recover only McAnally's portion of actual money received by defendant and not the bank stock. There is a further contention that the Hall judgment was of no value but, since defendant made no offer to submit that issue to the jury, it should not now be considered.

In passing upon this demurrer it is our duty to give plaintiff the benefit of all evidence in the case, as well as any reasonable inferences therefrom, favorable to him. There is little direct evidence that defendant actually received any money or property for the purpose of making a settlement of the Hall judgment. The three properties which had been sold under execution and purchased by Williams were held by him in his own right as purchaser and he was at liberty to take such action in regard thereto as he deemed advisable. The Hall judgment was no longer a lien upon that property after such execution sale. Defendant was thereupon employed by Williams to institute suits to set aside the three deeds made by Hall, which he did. The defendants in those suits, insofar as appears, were not interested in the Hall judgment, but certainly were interested in being relieved from the suits to set aside their deeds. They had nothing further to fear from the Hall judgment itself. Thereafter a settlement was effected by which these three suits were dismissed and Williams gave quitclaim deeds to all this property. Under such circumstances, defendant's contention that the money received and the stock transferred, as heretofore set forth, were in settlement of the three suits, seems to be...