State ex rel. Massman Const. Co. v. Shain

• Decision Date: 07 July 1939
• Docket Number: 36392,36396
• Citation: 130 S.W.2d 491,344 Mo. 1003
• Parties: State of Missouri at the relation of Massman Construction Company, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals. State of Missouri at the relation of Mitchel J. Henderson, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

130 S.W.2d 491

344 Mo. 1003

State of Missouri at the relation of Massman Construction Company, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals. State of Missouri at the relation of Mitchel J. Henderson, Relator, v. Hopkins B. Shain et al., Judges of the Kansas City Court of Appeals

Nos. 36392, 36396

Supreme Court of Missouri

July 7, 1939

Rehearing Granted, Reported at 344 Mo. 1003 at 1016.

Ruling and record in first case mentioned quashed. Writ of certiorari in second case mentioned quashed.

Martin J. O'Donnell for relator.

(1) The Kansas City Court of Appeals failed to find the facts and the law in this equity case but applied the rule on appeal in an action at law that Mr. Deacy was "entitled to have applied to his case the most favorable inference of all the credible evidence in the case" and thus and thereby stated in its opinion a rule in conflict with the rule declared by this court on appeal in an equity case. Miller v. McCabe, 208 Mo. 575; Kelly v Industrial Operating Co., 329 Mo. 637. Mr. Deacy both as an attorney for himself and his alleged joint obligee, Judge Henderson, and as a voluntary witness for himself judicially admitted that there was no scheme or attempt on the part of the appellant or its representative to prevent Mr. Deacy or Judge Henderson from collecting any fees to which they might be entitled from Mr. Nelson and the trial court having found that no such charge was made against relator or its representative, the trial court was without jurisdiction to render a judgment for Mr. Deacy and the Court of Appeals was without jurisdiction to affirm the judgment rendered by the trial court and hence it should be quashed on certiorari. Steele v. Ry. Co., 265 Mo. 110; Kingsbury v Joseph, 94 Mo.App. 304. (2) Mr. Deacy had no contract express or implied, with plaintiff, Thomas Nelson, to be paid for services rendered by assisting Jacobs & Henderson in connection with Mr. Nelson's case and consequently since Mr. Deacy had no contract with the plaintiff in the case he had no lien on the judgment and the opinion of the Kansas City Court of Appeals affirming the judgment for Mr. Deacy is in conflict with the following decisions of this and other courts and the general law on the subject: Blake v. Wilson, 35 S.W.2d 597; Gillham v. Ry. Co., 282 Mo. 118; Creason v. Deatherage, 325 Mo. 675; Fenn v. Dairy Co., 231 Mo.App. 1011; Lathrop v. Hallett, 20 Colo.App. 207; Gibson v. Chicago, etc., Ry. Co., 122 Iowa 565; Larnet v. Dubuque, 86 Iowa 166; Smith v. Wright, 153 Mo.App. 719. (3) Court of Appeals in holding that because Mr. Nelson employed Mr. Jacobs of the firm of Jacobs and Henderson as his attorney and said firm employed Mr. Deacy to assist Mr. Jacobs in representing Mr. Nelson and that Mr. Deacy by reason of said facts was entitled to recover from relator rendered a decision and wrote an opinion in conflict with the following decisions of this and other courts and the general law on the subject: Lamport v. Aetna Life Ins. Co., 199 S.W. 1023; Young v. Crawford, 23 Mo.App. 432; Kingsbury v. Joseph, 94 Mo.App. 298; City of Pilot Grove v. McCormick, 56 Mo.App. 530; Fuhr v. Express Co., 180 Iowa 518; Sabath v. Vac, 204 Ill.App. 396; Dillon v. Watson, 92 N.W. 156; Vilas v. Bundy, 106 Wis. 168; Gibson v. Ry. Co., 86 Iowa 166; Smith v. Wright, 153 Mo.App. 719. (4) Mr. Deacy, having alleged a joint contract with Mr. Nelson to pay Jacobs & Henderson and Mr. Deacy jointly one-half of the amount recovered as joint obligees even had the proof sustained the allegation, could not recover the amount separately either from Nelson or relator. Payment of the entire fee to one of the alleged joint obligees, to-wit: Mr. Jacobs, released plaintiff Nelson and relator from liability to any obligee for attorney's fees and the opinion of the Court of Appeals, omitting to hold Mr. Deacy bound by his pleading and holding relator liable to Mr. Deacy for an attorney's fee is in conflict with the following decisions of this and other courts and the general law on the subject: Gillham v. Met. St. Ry. Co., 282 Mo. 118; Frumberg v. Haderlein, 167 Mo.App. 721, 151 S.W. 160; Wells v. Gaby, 9 Mo. 570; Clark v. Cable, 21 Mo. 226; Ryan v. Riddle, 78 Mo. 524; Rainey v. Smizer, 28 Mo. 312; Nelson v. Massman Const. Co., 120 S.W.2d 77; Slaughter v. Davenport, 151 Mo. 32, 51 S.W. 471; Hamrick v. Lasky, 107 S.W.2d 204; Blake v. Wilson, 35 S.W.2d 597; Schiefer v. Freygang, 124 N.Y.S. 1037; Rawstorne v. Gandell, 15 Mo. & W. 308, Baron Parke said: "In the common case of two coplaintiffs equally interested, if one of them thinks fit, out of pure friendship to the defendant, to release the action, the court cannot on that account interfere to set the release aside." Peters v. McDonough, 327 Mo. 487. (5) Mr. Deacy was conclusively bound by the allegations in his motion that the obligation of Nelson was either a joint obligation to pay all three attorneys or that Mr. Deacy was to receive from Mr. Jacobs 25 per cent of his fee and the opinion of the Court of Appeals permitting a recovery by ignoring the allegations of Mr. Deacy's motion or pleading is in conflict with the following decisions of this court and other courts and the law generally. Gillham v. Ry. Co., 282 Mo. 118; Knopp v. Kilsey, 102 Mo. 291; Sternberg v. Merchants Bank, 334 Mo. 296; Lilly v. Menke, 143 Mo. 146; Bensieck v. Cook, 110 Mo. 173; Richards v. Johnson, 261 S.W. 53; State ex rel. Bank v. Sewer District, 327 Mo. 594.

W. M. Raines for respondents and Thos. E. Deacy.

(1) Relator has briefed this cause as though it were here on the merits, citing authorities from the Court of Appeals and other jurisdictions. In this proceeding this court is concerned only with conflict contained in the opinion of the Kansas City Court of Appeals with opinions of this court, and this court is bound by the facts as found in the opinion of the Kansas City Court of Appeals. State ex rel. Pub. Serv. Comm. v. Shain, 119 S.W.2d 220; State ex rel. Ben Hur Life Assn. v. Shain, 119 S.W.2d 236; State ex rel. Baldwin v. Shain, 125 S.W.2d 43; State ex rel. St. Joseph v. Ellison, 223 S.W. 671; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054. (2) Although this is an equity case, and, as such, was tried de novo in the Kansas City Court of Appeals, yet on disputed questions of fact it was proper for the Kansas City Court of Appeals to defer to the findings of the trial judge who heard and saw the witnesses who testified. Gehlert v. Smiley, 114 S.W.2d 1029; McKinney v. Hutson, 81 S.W.2d 951, 336 Mo. 867; Green v. Wilks, 109 S.W.2d 859; Bewes, Inc., v. Buster, 108 S.W.2d 66; Miller v. McCabe, 208 Mo. 562, 106 S.W. 655. (3) The contention of relator that since evidence established that no fraud was practiced by relator in paying the judgment and therefore the opinion of respondents affirming Mr. Deacy's judgment was in conflict with opinions of this court cannot be considered here, since this contention and evidence quoted was not considered by the respondents in their opinion nor do such facts appear in the opinion of respondents. Payment of the amount of the judgment to the circuit clerk did not place the fund in custodia legis, Noel v. Mo. Pac. Ry. Co., 74 S.W.2d 7; Sec. 11716, R. S. 1929; Wait v. A., T. & S. F. Ry. Co., 204 Mo. 491, 103 S.W. 60. (4) Mr. Deacy had an implied contract of employment with the plaintiff, Thomas Nelson, he having been employed by Jacobs & Henderson to assist in said cause, with the knowledge and consent of the plaintiff, Thomas Nelson, and having rendered valuable service until his discharge. Woodruff v. Rusk, 76 S.W.2d 709; State ex rel. Anderson v. Roehrig, 320 Mo. 870, 8 S.W.2d 998; Mills v. Met. St. Ry. Co., 221 S.W. 1, 282 Mo. 118; Creason v. Deatherage, 30 S.W.2d 1. (5) Mr. Deacy alleged and proved that he was not a member of the law firm of Jacobs & Henderson and was not a party to the express contract between Jacobs & Henderson and the plaintiff Nelson, but that he acquired an implied contract with the plaintiff Nelson by reason of his employment in the cause by said law firm, with the knowledge and consent of the plaintiff Nelson. Lawson v. Telephone Co., 178 Mo.App. 124; Woodruff v. Rush, 76 S.W.2d 709; Secs. 11716, 11717, R. S. 1929. (6) Mr. Deacy did not abandon the trial of the cause involved, but the facts as found by respondents disclose that Mr. Deacy was discharged by the plaintiff from further employment in the cause. Mills v. Met. St. Ry. Co., 221 S.W. 1, 282 Mo. 118; Noel v. Mo. Pac. Ry. Co., 74 S.W.2d 7.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

These causes are in certiorari to quash the opinion by the Kansas City Court of Appeals in Nelson v. Massman Construction Company et al., 120 S.W.2d 77. They were separately commenced and separately briefed, but were consolidated and argued together. The facts, as they appear in the opinion and by which we are bound, are, in many respects, common to both causes. It appears in the opinion sought to be quashed that Thomas E. Nelson brought suit against the Massman Construction Company and recovered a judgment for $ 5500. [See Nelson v. Massman Construction Company, 231 Mo.App. 1, 91 S.W.2d 623.] The law firm of Jacobs & Henderson (Floyd E. Jacobs and Mitchel J. Henderson) had a contract with Nelson to prosecute the suit against the Massman Construction Company, by which contract the firm was to receive for services 50 per cent of the net amount recovered. Thomas E. Deacy, an attorney, but not a member of the firm of Jacobs & Henderson, "had arrangements with said law firm whereby he, according to his testimony, was to receive 25 per cent of the fee" in the Nelson case. When the judgment was paid, November 13, 1936, it amounted to $ 6437.55, and this amount was paid by the Massman...