Stiles v. Cooter Gin Co.

• Decision Date: 02 October 1934
• Docket Number: 5429
• Parties: S. I. Stiles, Respondent v. Cooter Gin Company, Defendant
• Court: Missouri Court of Appeals

74 S.W.2d 1092

S. I. Stiles, Respondent v. Cooter Gin Company, Defendant

No. 5429

Court of Appeals of Missouri, Springfield District

October 2, 1934

Appeal from the Pemiscot County Circuit Court. Hon. John E. Duncan Judge.

AFFIRMED.

McKay & Peal, of Caruthersville, for Appellant.

Ward & Reeves, of Caruthersville, for Respondent.

WALTER A. BAILEY, Judge. ALLEN, P.J., Concurs. SMITH, J., Concurs.

OPINION

BAILEY JUDGE.

This is an action to recover attorney fees predicated upon the attorney's lien statute. The cause arose in Justice Court where plaintiff obtained a verdict and judgment from which defendant appealed to the Circuit Court, and there plaintiff again prevailed. From the judgment obtained in Circuit Court amounting to $ 49.72 defendant has appealed to this court.

It is urged that defendant's demurrer to the evidence offered at the close of the whole case should have been sustained. The evidence briefly stated is to the effect that the plaintiff herein, a licensed attorney at law, received for collection a claim of a foreign corporation, styled the O'Gara Coal Company, in the sum of $ l92.75, against the Cooter Gin Company, defendant herein; that this claim was forwarded to plaintiff by H. H. Richter Company, of New York, a collection agency; that he was to receive for his services the amounts provided in the published C. R. C. List, which were 15% of the amount collected up to $ 500.00, one third to the forwarding attorney; that in addition to that plaintiff was to have a minimum suit fee of $ 7.50. It further appears that there was no direct communication at any time between plaintiff and the creditor, the O'Gara Coal Company, but all correspondence was carried on between plaintiff and said collection agency; that after plaintiff received said claim he took up the matter of payment with defendant Cooter Gin Company, either in person or by letter, but payment was refused; that thereafter he instituted a suit in Justice Court on said claim, had defendant duly served with summons and thereafter obtained a judgment from which the Cooter Gin Company appealed to the Circuit Court that two terms of court went by and no notice of the appeal was ever served; that in the meantime, however, defendant Cooter Gin Company paid said claim in full, whether to the collection agency or direct to the O'Gara Coal Company does not appear; that plaintiff thereafter without knowledge that the claim had been paid, had the judgment obtained in the Justice Court affirmed in the Circuit Court; that thereafter defendant, through its attorneys, filed a motion to set aside the default judgment in the Circuit Court; for the reason that: "on the 27th day of October, l931, defendant paid plaintiff O'Gara Coal Company the full amount sued for by plaintiff in said cause, and plaintiff thereby agreed to dismiss its said cause of action in said Circuit Court, etc.," It further appears from the evidence that the H. H. Richter Company, which had forwarded the claim of the O'Gara Coal Company to plaintiff herein for collection, thereafter failed and plaintiff was unable to obtain his attorney fees from that source.

In support of its demurrer to the evidence defendant urges that before an attorney is entitled to a lien upon a judgment obtained through his efforts, he must first prove the relationship of attorney and client, that is, a contract, either express or implied, between himself and his client authorizing the attorney to represent his client, and that no contract either express or implied existed between plaintiff herein and the O'Gara Coal Company. Further, it is said, that where the employment is arranged through an agent, the client's liability depends upon the authority of the agent to bind him, and that where an attorney brings suit on a claim as the attorney for a collection agency, he cannot recover his fee from plaintiff in such proceedings. The legal contentions above set forth are supported by numerous authorities, among them being:

Hersleb vs Moss 28 Ind. 354,

White vs Esch 78 Minn. 264, 80 N.W. 976,

Price vs Hay, 132 Ill. 543, 24 N.E. 620,

Mussey vs Vanstone 82 Mo.App. 353. It is equally well settled however, that where a duly licensed and practicing attorney appears in a court of record as the representative of a party litigant, there is a strong presumption that he is authorized so to appear, and he may not in general be required to prove such authority,...