Thompson v. Stearns

• Decision Date: 08 May 1917
• Docket Number: No. 14676.,14676.
• Citation: 197 Mo. App. 344,195 S.W. 43
• Parties: THOMPSON et al. v. STEARNS et al.
• Court: Missouri Court of Appeals

195 S.W. 43

197 Mo. App. 344

THOMPSON et al. v. STEARNS et al.

No. 14676.

St. Louis Court of Appeals. Missouri.

May 8, 1917.

Rehearing Denied May 28, 1917.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Suit by William B. Thompson and Ford W. Thompson, copartners doing business under the firm name of W. B. & Ford W. Thompson, against E. C. Stearns, Henry C. Garneau, trustee, and W. G. Rath. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

John A. Blevins and Lon C. Hocker, both of St. Louis, for appellants. Albert D. Nortoni, of St. Louis, for respondents.

BECKER, J.

This is a suit for attorneys' fees alleged to be due plaintiffs from the defendant E. G. Stearns, and for a lien on Stearns' interest in property held by the defendant Garneau as trustee. On a hearing of the cause, judgment and decree were entered by the court in favor of the plaintiffs and against the defendant Stearns in the sum of $3,153, which said amount was by said decree declared a lien in favor of plaintiffs on the real estate described in plaintiffs' petition. From this judgment and decree, defendants and plaintiffs appeal. We herein take up defendants' appeal No. 14676.

Plaintiffs commenced their suit on the 8th day of December, 1913. The petition is lengthy, and we do not find it necessary to set it out. The answer of each of the defendants was a general denial.

The testimony in the case shows that plaintiffs, father and son, were a copartnership in the practice of law, and that the defendant E. G. Stearns was a nonresident of the state of Missouri, as was the defendant W. G. Rath, a son-in-law of said Stearns. Defendant Burritt was a resident of St. Louis. That said Stearns, Rath, and Burritt were stockholders in a corporation known as the Banner Rubber Company, of which Burritt was in active charge and control. Stearns, having become dissatisfied with the manner in which the Banner corporation was being managed by Burritt, and desirous of taking steps to protect his interest in said company —Stearns' investment in the company aggregating from $60,000 to $100,000 during the period over which the services of plaintiffs extended—sought the advice of the plaintiffs as to what, in their opinion, defendant should do to get his money out of the said company. It appears that, throughout the employment, Mr. Ford W. Thompson, the junior member of plaintiffs' firm, was in active charge of the business for defendant Stearns. Mr. Ford W. Thompson made arrangements for a consultation between defendants Burritt and Stearns which resulted in said Thompson drawing up some sort of a contract between the said parties, some time in August, 1912. Along in December, of that same year, Stearns, having become dissatisfied with the working out of the contract theretofore made, was advised by Ford Thompson, so Stearns testified, that it would be necessary to file a suit against Burritt, but before doing so it would be necessary to have an accountant go over the books of the said corporation. About the same time, in December, 1912, the defendant Stearns testified he had received a bill from the plaintiffs for legal services amounting to $500, and that, a short time after receiving the bill, he, in company with a man by the name of Bentley, went to the offices of plaintiffs, and during the conference the following conversation took place:

"`Mr. Thompson, what are you going to charge me to file this bill and protect my interests, follow through and get my money out of the Banner Rubber Company?' He said to me: `Mr. Stearns, my father is not here. He generally fixes the fees, but in his absence I will make the fee $1,000. This bill which I have rendered of $500 I am going to make that void and give you credit for whatever you have a mind to pay me now as a retainer.' And I paid him about that date $200 on the proposition he made me for the sum of $1,000."

A little later, and through the advice of the plaintiffs, a trusteeship was arranged for between the defendants Stearns, Rath, and Burritt, whereby the entire properties of the Banner Rubber Company were conveyed to Henry C. Garneau as trustee with certain powers to manage, etc., and with authority to sell the entire plant at public auction to the highest bidder, on the 14th day of December, 1913, unless said date of sale was postponed by agreement of all the parties in interest. This trust agreement was prepared by the plaintiffs and the selection of Garneau as trustee was made by plaintiffs.

After the trustee's agreement referred to had been drawn up, the defendant Stearns went to the office of the plaintiffs to say good-bye to them, and according to his testimony was told by Mr. Ford Thompson that his father, Mr. William B. Thompson, wished to speak to him, and that thereupon he went into the office of the said William B. Thompson, who suggested that they come to some agreement as to the sum defendant was to pay them as attorneys' fees; that, after some discussion, the details of which it is not necessary to set out, Mr. Thompson said he would write defendant a letter embodying their resultant understanding; and that, accordingly, defendant thereafter received a letter from the Thompsons, while at his home in Chicago.

Mr. William B. Thompson did not testify, but Mr. Ford Thompson was a witness and testified. He absolutely denied that he had agreed to charge but $1,000 for the services, and that no such conversation had taken place; that the agreement as set out in the letter spoken of as having been sent to the defendant Stearns, as expressing agreement for compensation for the services rendered and to be rendered, was in point of fact dictated in the presence of said Stearns to Miss Sophia Luessler, stenographer and clerk for the plaintiff firm, and read by the said Miss Luessler from her notes to the said Stearns, who refused to wait for the matter to be written out in full, desiring to catch a train returning to his home in Chicago, and requested that the letter be forwarded him there. Mr. Ford Thompson is corroborated by the testimony of the said Miss Luessler as to the matters relating to the dictating of the letter.

The letter referred to is as follows:

                              "St. Louis, March 15, 1913
                

"E. G. Stearns, Esq., Jackson Blvd. and Market St., Chicago, Ill.—Dear Sir: In accordance with the verbal agreement this day had with you, with reference to our fees for services rendered, and to be rendered, in the matter of the Banner Rubber Company, we write you this letter of confirmation.

"For all services rendered to date, and to be rendered upon the final distribution of your interest after sale of the property by the trustee, our bill is the amount of five thousand dollars ($5,000.00); however, in the event that the property sells for less than $150,000.00 we agree to deduct from our fee the sum of one thousand dollars ($1,000.00).

"To date we have received, on account of this bill, the sum of $200.00, a balance of $4,800.00 being due under the above terms, you to pay $800.00 forth with, and the remaining $3,000.00 to be paid at your convenience on or before the date at which the trustee, Henry C. Garneau, sells the real estate, buildings, machinery and equipment, and the additional $1,000.00 to be paid in the event that at said sale the property brings $150,000.00; but in the event the property sells for less than $150,000.00, the additional $1,000.00 is not to be paid; it being our understanding that the full charge shall be $4,000.00 if the property brings less than $150,000.00, and in the event that it brings as much as $150,000.00 then an additional sum of $1,000,00 shall be paid, making the total amount $5,000.00.

"Yours truly, W. B. & Ford W. Thompson. "Paid, Mar. 18/13-800.00."

In reply thereto, the defendant Stearns sent a letter to the plaintiffs in which we find the following paragraph:

                              "Chicago, March 18, 1913
                

"W. B. & Ford W. Thompson, 510 Merchants Laclede Bldg., St. Louis, Mo.—Gentlemen: Referring to your letter of March 15, the same defines my understanding of your charge, except that the term for services rendered and to be rendered in the matter of the Banner Rubber Company includes your attention respecting the affair from my standpoint up to the conclusion of the sale of my interest therein. * * *"

And defendant Stearns did, in conformity with the letter, send plaintiffs $800.

It appears that, some time after Garneau had taken charge of the properties of the Banner Rubber Company as trustee, the defendant Stearns became dissatisfied with Garneau's management thereof and became convinced that said Garneau was not treating him upon the same basis as he was the defendant Burritt, but that Garneau was in point of fact conniving in some manner with one Wagner, who was retained in the employ of the Banner Rubber Company under said Garneau, trustee, to take advantage of his position as trustee, and endeavor, at such time when the properties would be sold at auction, to buy same in for himself. Stearns reported his feeling regarding this matter to the Thompsons and insisted that steps be taken to remove Garneau as trustee. It appears that a meeting was had in Chicago in the office of the attorneys who represented Stearns in Chicago, at which meeting Mr. Ford Thompson was present, and a bill was dictated which it was intended should be filed in the United States court at St. Louis, asking the removal of Garneau as trustee. Mr. Ford Thompson left before the bill was written out ready for signatures, and later refused to sign the bill as attorney for defendant Stearns, and gave as his ground that the defendant Stearns did not have the requisite proof to substantiate the allegations set forth in the bill. An endeavor had been made by Ford Thompson (at the request and suggestion of William B. Thompson), in a personal letter to the trustee Garneau, to have Garneau resign as trustee in order to save Mr. Ford Thompson the...