Simrall v. Morton

• Decision Date: 30 May 1889
• Citation: 12 S.W. 185
• Parties: SIMRALL et al. v. MORTON.
• Court: Kentucky Court of Appeals

12 S.W. 185

SIMRALL et al. v. MORTON.

Court of Appeals of Kentucky.

May 30, 1889^[1]

Appeal from court of common pleas, Jefferson county; EMMET FIELD Judge.

"Not to be officially reported."

Wm Lindsay and Brown, Humphrey & Davie, for appellants.

Barnett Noble & Barnett and Dodd & Grubbs, for appellee.

PRYOR J.

On the former hearing of the case in this court it was insisted by the appellants that the means adopted by the appellee to secure his debt were within the meaning of the contract under which they prosecuted the claim of the appellee, and when the object had been accomplished, viz., the debt secured, they were entitled to the agreed compensation, as there had been no express waiver of their claim for services; and it seems to us the only question now presented by the record is: Are the plaintiffs entitled to the value of their services rendered to the date of the formation of the syndicate and the abandonment of the litigation by the appellee? If abandoned without the consent of the appellants, they should be paid; if at the instance of, or by the consent of, the attorneys for the reason that future litigation was hopeless then no recovery should be had. This was substantially the issue presented by the pleadings and tried on the return of the case to the lower court. If the court below has followed the mandate of this court as to the law of the case, we can then perceive no reason for disturbing the verdict.

The court, in instructions Nos. 1 and 2, presented the questions raised so that the jury could not have misconceived the issue. The jury was told that if the appellee was advised by his counsel, in effect, that further litigation was unnecessary, and that no recovery could be had so as to enable him to make his debt, etc., the law is for the defendant, but the plaintiffs cannot be bound by the "advice of any one else given the defendant to that effect, unless the jury should believe from the evidence that the person so advising him (if any) was authorized by the plaintiffs to do so." For the plaintiffs the jury was told "that if the defendant, at his own instance, and not at the advice of the plaintiffs, or some one authorized by them, surrendered the debt for the collection of which he had employed the plaintiffs to sue, then the law is for the plaintiffs, and they are entitled to such a sum as will fairly compensate them for the services rendered in the effort to collect defendant's debt." On this issue, and the only one entitled to be presented to the jury either by the opinion formerly delivered in this case or from the evidence, the jury returned a verdict for the defendant, or, rather, for the plaintiffs, fixing the recovery at one cent.

On the trial the appellee testified that the senior counsel in the case, Judge Bodley, after this court had decided adversely to the appellee in his effort to make the debt, said to the appellee that this ended the matter. Judge Bodley had bestowed a great deal of labor on the preparation of the case, had argued the case in this court with much zeal and ability, and, on being informed of the result, was asked by the appellee what was to be done, and his reply was that this was the end of it, or words to that effect. It seems that the present appellants were not consulted, if at all, by the appellee, and that Judge B., by reason of the magnitude and importance of the case, and his confidence in the recovery for the appellee, was intrusted with its sole control. His remark to the appellee, with the construction that would naturally be placed upon it, was sufficient to induce the belief that in his (Judge B.'s) opinion further litigation was useless; and so the appellee must have regarded it, if we are to judge by his subsequent conduct. But it is said that, after this conversation with Judge Bodley, the appellants, under the contract, proceeded to bring another action to hold the stockholders of the railroad corporation liable for the debt. This fact does not appear. An action was instituted by Mr. Pindell, in conjunction with the surviving member of the firm of Bodley & Simrall, (Judge B. having died,) with this object in view. The appellee however, testifies that Pindell told him "there was nothing to be made out of the suit, and that the syndicate was the only chance for him." It is evident, therefore, that the lawyers with whom the appellee consulted, and who were the active managing attorneys in the preparation of the case, regarded the case as hopeless; and the appellee, with a view of securing his debt, and at the risk of losing a great deal more, entered into the syndicate, and purchased the road. The stock at the time of the purchase by the syndicate was of no market value, and was in...