Taylor v. Perkins

• Citation: 157 S.W. 122,171 Mo.App. 246
• Parties: JOHN D. TAYLOR, Respondent, v. HARVEY W. PERKINS, Interpleader, and C. W. PRINCE, Interpleader, Appellant
• Decision Date: 07 April 1913
• Court: Court of Appeals of Kansas

157 S.W. 122

171 Mo.App. 246

JOHN D. TAYLOR, Respondent, v. HARVEY W. PERKINS, Interpleader, and C. W. PRINCE, Interpleader, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.

Reversed and remanded.

Roy McKittrick, C. W. Prince and T. A. Witten for appellant.

The court erred in refusing to sustain defendant Prince's demurrer to the original bill of interpleader. The bill itself sets up all the facts necessary to establish said defendant's lien against the fund in the interpleader's hands, and the court should have sustained the demurrer and ordered the fund paid to defendant Prince. R. S. 1909, sec. 964-65; United Railways Co. v O'Connor, 153 Mo.App. 128; Wait v Railroad, 204 Mo. 491; Taylor v. Transit Co., 198 Mo. 715. After the court improperly submitted the case to the jury, it might have brought about the correct result by directing the jury to find the verdict for the plaintiff.

L. N Dempsey and J. A. Collet for respondent.

(1) The trial court had the right to submit the facts in issue to a jury and could either adopt the finding of the jury and pronounce judgment thereon or disregard the finding of the jury as it saw fit. Weeks v. Senden, 54 Mo. 129; Borchers v. Barckers, 158 Mo.App. 267. (2) There were no declarations of law asked or given, hence the judgment will be affirmed, if it can be done upon any theory applicable to the facts of the case: Gintry v. Templeton, 47 Mo.App. 55. (3) A contract founded upon champertous consideration is against public policy and void. Interpleader Prince seeks to recover on a champertous contract. In such case, claimant can have no relief: Bent v. Priest, 86 Mo. 490; Duke v. Harper, 66 Mo. 59; Comstock v. Flowers, 109 Mo.App. 275; Barmgrover v. Pettigren, 2 L. R. A. (N. S.) 260; Re Snyder, 14 L. R. A. (N. S.) 1101.

OPINION

ELLISON, J.

--A bill of interpleader was filed by plaintiff Taylor setting forth that he held in his hands the sum of $ 980, which was claimed by C. W. Prince, an attorney at law, as a fee, and by Harvey W. Perkins as administrator of the estate of James R. G. Perkins. Taylor asked that these parties be required to interplead for the money. The trial court made the order and the parties filed their claims accordingly. The court, over the protest of Prince, then proceeded to try the case with a jury as an ordinary action at law. A verdict was rendered for Perkins and judgment entered accordingly. Whereupon, after an unsuccessful motion for new trial, Prince appealed.

It was error to treat the case as an action at law. It should have been tried as a case in equity. [Grand Lodge v. Elsner, 26 Mo.App. 108; Funk v. Avery, 84 Mo.App. 490; Duke, Lennon & Co. v. Duke, 93 Mo.App. 244, 251; Smelting Co. v. Lead Works, 102 Mo.App. 158, 164, 76 S.W. 668; Borchers v. Barckers, 158 Mo.App. 267, 138 S.W. 555.]

It is quite true that a trial court in an equity case may frame issues and submit them to a jury, rather for the advice of the latter, the court not being bound by the verdict. But this record does not disclose that procedure was adopted, or that the case was other than a trial at law where the verdict if sustained by any substantial evidence is binding on the court.

It seems that James R. G. Perkins was a brother of Harvey Perkins, the administrator, and that James was negligently killed by the servants of the Chicago, Burlington & Quincy Railway Company, and that an action for damages was instituted in the State court by Harvey as administrator against the railway company. Prince being his attorney. The cause was removed to the Federal court and then dismissed and brought again in the State court and again removed. At this point Prince was discharged and other attorneys employed, who again dismissed and again brought in the State court where it proceeded to judgment for six thousand dollars. This was compromised for twenty-eight hundred dollars. Prince had a contract for a fee of thirty-five per cent of what should be obtained from the railway company, amounting under the compromise to nine hundred and eighty dollars, for which he claims to have an attorney's lien.

There was evidence tending to show that Prince was rightfully dismissed for failure to faithfully perform his duty to his client. And there was evidence tending also to show that he was guilty of champerty in that he agreed to prosecute the suit at his own expense, paying the costs thereof. If, on retrial, the evidence shows these matters to be true, he would not be entitled to his fees, nor, of course, to enforce a lien therefor. [Bent v. Priest, 86 Mo. 475, 490; Duke v. Harper, 66 Mo. 51; Kelerher v. Henderson, 203 Mo. 498, 515, 101 S.W. 1083; Breeden v. Ins. Co., 110 Mo.App. 312, 85 S.W. 930; Phelps v. Manecke, 119 Mo.App. 139, 96 S.W. 221.]

But Prince insists that his contract was in writing and that no mention of an agreement to pay the costs is made in the writing and as the law is that a written contract plain on its face cannot be altered or added to, no oral evidence can be heard on the subject of maintenance. That is not the law. If it were it would permit a recovery on a promissory note given as compensation for the commission of a felony. The maintenance here alleged is a part of the consideration of the contract of employment, and as such may be shown.

But it is insisted that since the law permits an attorney to become interested in an action by authorizing him to maintain a lien for a contingent fee out of the proceeds of the suit, he is rightfully and legally interested in the action and may properly agree to pay the costs. This is put upon the ground that one who is interested in the subject-matter of litigation may contribute towards its prosecution. But this interest must have existed or been acquired in some way other than through the contract containing the champertous agreement. In Gilman v. Jones, 87 Ala. 691, 5 So. 785, quoting from 3 Am. & Eng. Ency. of Law, 76, it is said "but it is essential that it (the interest) be distinct from what he may acquire from the party maintained." In Ware's Adm'r v. Russell, 70 Ala. 174, 179, it is said that: "The corrupting element of the contract is its tendency to foment or protract litigation, its dependency for its value upon the termination of suits, and its introduction to control and manage them, of parties without other right or interest than such as is derived from the contract." (Italics ours.) In 2 Story's Eq. Jur., sec. 1050, it is said that one "may purchase by assignment the whole interest of another in a contract, or security, or other property which is in litigation, provided there be nothing in the contract which savors of maintenance; that is, provided he does not undertake to pay any costs, or make any advances beyond the mere support of the exclusive interest which he has so acquired."

It would be unsound, morally and legally, to say that one may by a champertous agreement acquire an interest in litigation which interest instantly legalizes the agreement.

We are cited to a case in Michigan (Wildey v. Crane, 63 Mich. 720, 30 N.W. 327) where a man owned a horse which he insured against loss by fire. The horse was burned in such way as that the insurance company was not liable under the policy, as was afterwards decided. The owner considered his claim doubtful, and having been advised that the company was not liable, had abandoned all idea of attempting to recover anything. A lawyer then approached him and proposed that if he would permit him to bring a suit and it failed it should not cost him anything and that he (the lawyer) would pay all costs incurred; but if successful he should have one-half the sum recovered. The owner agreed, the action was brought and lost, the costs being assessed against the owner, which he was compelled to pay. He thereupon brought an action against the lawyer on his agreement, and champerty was set up by the latter in avoidance. It was held that the agreement was valid and the owner recovered. But the court held the agreement undoubtedly to be champertous under the common law and only sustained the action on the ground that the statutes of Michigan had repealed the law of champerty. And in Maine (Low v. Hutchinson, 37 Me. 196) where the common law is not repealed by statute, such an agreement was held to be void.

The Michigan statute thus held to repeal the common law of champerty, reads as follows: "That all existing laws, rules, and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel for his compensation are repealed, and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties."

We have no such statute in this State. On the contrary, our attorneys' lien statute (Sec. 964, R. S. 1909) declares that: "The compensation of an attorney or counsellor for his services is governed by agreement, express or implied which is not restrained by law. . . ." A champertous agreement is restrained by law in this State (authorities infra) and therefore that section of the attorneys' lien statute...