Thompson v. Smith

• Citation: 248 S.W. 1070
• Decision Date: 14 March 1923
• Docket Number: (No. 339-3710.)
• Parties: THOMPSON v. SMITH.
• Court: Texas Supreme Court

248 S.W. 1070

THOMPSON v. SMITH.

(No. 339-3710.)

Commission of Appeals of Texas, Section B.

March 14, 1923.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by John E. Smith against R. L. Thompson, with cross-action by defendant. Judgment against plaintiff and for defendant on his cross-action was reversed by the Court of Civil Appeals (233 S. W. 876), and defendant brings error. Judgment of the Court of Civil Appeals reversed, and that of trial court affirmed, according to the recommendation of the Commission of Appeals.

Chandler & Pannell, of Stephenville, for plaintiff in error.

B. H. Oxford, of Plainview, for defendant in error.

HAMILTON, J.

J. E. Smith sued R. L. Thompson, an attorney, alleging damages resulting to him by reason of Thompson's alleged willful and wanton failure and refusal to perform legal services for which he was employed by Smith, and for the possession of title papers to certain land, or their value. Thompson answered by general demurrer, special exceptions, general denial, and specially pleaded that he had refused to deliver the papers to Smith because he had failed and refused to pay Thompson the money spent by him in procuring the papers.

By way of cross-action, Thompson pleaded that on the 22d day of March, 1916, Smith entered into a contract with L. N. Frank and plaintiff in error, as follows:

"State of Texas, County of Erath.

"This contract made in duplicate, on the day and date hereinafter set forth by and between J. E. Smith, of Erath county, Texas, hereinafter called first party, and L. N. Frank and R. L. Thompson, attorneys at law, of Stephenville, Erath county, Texas, hereinafter called second party, witnesseth:

"First. That first party has this day employed second party to represent first party in the investigation of the title and possession and such other and further investigation as is necessary to vest title to said land in first party under the terms of a certain contract had by first party with one W. L. Wright of St. Louis, Mo., and other parties connected with said contract; the title and possession of which land requiring the services of second party is hereby described as about twenty-six thousand acres of land and described as fractions A, B, and C, lot No. 4, of the national lands situated in the municipality of Villa Ahumada, of the district of Bravos, state of Chihuahua, in the republic of Mexico, and being the same land as described in the contract above referred to. That second party is to do all such acts and to perform all such services as may be necessary to a full and complete investigation of the title and possession of said lands with especial reference to the ownership thereof in first party and to do all acts necessary in vesting title and possession thereof in first party.

"Second. That in payment of and satisfaction of services rendered and to be rendered in the premises, first party hereby assigns, and conveys to second party a one-third (1/3) undivided interest in and to the lands referred to in the foregoing paragraph, the said one-third undivided interest to vest in second party absolutely: Provided that, if it be found that the lands and premises or any part thereof such as is described in first paragraph be incorporated, or in the name of, or is owned in a corporate name, then first party hereby conveys and assigns to second party a one-third (1/3) undivided interest in and to such shares of capital stock or other evidence of holdings therein as first party owns in said corporation: Provided, further, that second party, in the event of a settlement or compromise by and between first party and the said W. L. Wright or other parties growing out of the contract for the purchase of said land above described by first party, then and in that event first party hereby conveys, sets over and assigns to second party a one-third interest in all moneys, or money, or property paid to first party in such settlement.

"Third. First party is to advance the sum of $50 at such times as it may be necessary to second party to cover such expenses as may be necessary in the investigation of the condition of title and possession of said lands above described; that all other money and expense second party may expend under the terms of this contract over and above the $50, the same to be borne equally by first party, L. N. Frank, and R. L. Thompson, in proportion of one-third each: Provided, that if under the terms of this contract second party shall receive title and possession to any part of said land above described, or interest therein, or shares of stock or money in lieu thereof, second party shall out of their interest so recovered refund to first party the $50, together with one-third of such expense as he may be out under the terms of this contract.

"Witness our hands this the 22d day of March, 1916."

Thompson further pleaded in his cross-action that, upon the execution of the contract above set out, he diligently entered upon the performance of his duties under the contract and prosecuted the investigation by correspondence and by personal trips, at his own expense, and that plaintiff wholly failed and refused to pay his one-third of the expenses; that in 1919 another contract was executed whereby plaintiff in error was to represent the defendant in error for a consideration of one-half of the lands, and according to the terms of which the parties were to share the expenses equally. Plaintiff in error then sets up in detail the things done by him in compliance with the latter contract, up to about February 1, 1920, when defendant in error, without cause or excuse, discharged the plaintiff in error from his employment under the contract, and thus terminated it; that by reason of the discharge defendant in error became liable to plaintiff in error for the reasonable value of services rendered up to the time of his discharge; that the reasonable value of the services rendered by plaintiff in error to defendant in error, and the money, time, and labor expended for defendant in error's benefit by plaintiff in error was $10,000. In another count plaintiff in error, in his cross-action, pleaded that—

"Had the plaintiff (defendant in error) not...