Thurston v. Travelers' Ins. Co., 29039.

• Decision Date: 31 December 1934
• Docket Number: No. 29039.,29039.
• Citation: 128 Neb. 141,258 N.W. 66
• Parties: THURSTON v. TRAVELERS' INS. CO. ET AL.
• Court: Nebraska Supreme Court

128 Neb. 141

258 N.W. 66

THURSTON

v.TRAVELERS' INS. CO. ET AL.

No. 29039.

Supreme Court of Nebraska.

Dec. 31, 1934.

Syllabus by the Court.

1. The contract of employment as actually made between attorney and client is controlling, and the attorney is bound thereby even though he may have agreed to act for an inadequate amount, or for no fee at all, unless the agreement is made under a mistake of fact which the law recognizes.

2. “Under ordinary circumstances, an attorney who has contracted with his client as to the amount of his compensation for a specified service will not be allowed to contract for greater compensation for such service while the service is being rendered.” Olson v. Farnsworth, 97 Neb. 407, 150 N. W. 260.

3. A party who, after appealing from a decree in his favor, voluntarily accepts the benefits or receives the advantage of the decree is thereby precluded from afterwards prosecuting his appeal, even though what is done was in pursuance of an express stipulation of the parties.

4. Record and evidence examined, and held to sustain the judgment of the trial court.

Appeal from District Court, Douglas County; Dineen, Judge.

Action in equity by Clarence J. Thurston against the Travelers' Insurance Company and Emma Jayne Hilton. From the judgment, plaintiff appeals, and Emma Jayne Hilton cross-appeals.

Affirmed.

M. L. Donovan and C. J. Thurston, both of Omaha, for appellant.

Kennedy, Holland & De Lacy and Brogan, Ellick & Shoemaker, all of Omaha, for appellees.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, and PAINE, JJ., and LOVEL S. HASTINGS, District Judge.

EBERLY, Justice.

This is an action in equity to secure a judicial determination of the amount of attorney's fees alleged to be due plaintiff for his services in the case of Hilton v. Travelers' Insurance Company in the district court for Douglas county, and the enforcement of an attorney's lien for the recovery of the same.

Defendant Hilton joined issue by general denial, and also alleged, in substance, that the receipt by plaintiff of the sum of $150 as attorney's fee allowed by the trial court, and the payment by such defendant to plaintiff of an additional sum of $167.90 as a gratuity, constituted payment in full under the terms of the contract of employment. The plaintiff then by reply put in issue the new matter set forth in defendant's answer. Trial was had to the court, and evidence was submitted on behalf of both parties.

On October 10, 1933, the trial court, on consideration of the evidence, entered a finding and judgment determining that a contract of employment as attorney and client existed between the plaintiff and defendant, and that plaintiff had complied with the terms thereof; that, under the provisions of such agreement, plaintiff was entitled to have and receive the sum of $150 (being the attorney's fee allowed by the court) and in addition thereto 20 per cent. of the judgment of $839 entered in said cause (all of which the defendant had theretofore paid); also that plaintiff was entitled to 20 per cent. of the weekly payments on the policy in suit, for total permanent disability of defendant accruing thereon from May 25, 1932, to June 10, 1933, amounting to $225.56 (which at the time of the judgment defendant had not paid); and that plaintiff was entitled to an attorney's lien for the amount so adjudged to be due. Further recovery by plaintiff was denied by the trial court.

On October 16, 1933, plaintiff filed a cost bond on appeal in the sum of $75, which was approved on that day by the clerk of the district court for Douglas county.

On October 19, 1933, the written stipulation of all interested parties was filed in said cause in the district court for Douglas county, providing, in part, as follows: “Now, therefore, it is hereby stipulated and agreed, by and between the parties hereto, that the defendant Emma Jayne Hilton may draw from the clerk of this court 50 per cent. of the money already paid into court by said insurance company and may receive 50 per cent. of all payments which are due and may become due from said insurance company pending this appeal, and that the plaintiff herein may draw down $225.56 and his costs in this court from the clerk of this court and that the balance of the money in the hands of the clerk of this court shall remain in his hands until the determination of the appeal herein, and that the Travelers' Insurance Company will pay into court the payments which are due and may become due the defendant Emma Jayne Hilton pending this appeal, 50 per cent. of which shall be paid to defendant Emma Jayne Hilton by the clerk and 50 per cent. of said funds to be held by the clerk of this court until the final determination of the appeal herein and then to be disbursed in accordance with the decision of the supreme court.”

Plaintiff now presents an appeal, filing his transcript on appeal in this court on October 25, 1933, and defendant Hilton has cross-appealed.

Appellant challenges the correctness of the conclusions of the trial court, and claims that the evidence, properly considered, fairly shows that a valid oral agreement was entered into by him and defendant Hilton, by the terms of which he was to receive the sum of $150, allowed by the trial court as attorney's fees in the case of Hilton v. Travelers' Insurance Company, and 20 per cent. of the judgment entered in that case, and also 20 per cent. of all weekly benefits for permanent total disability to which defendant Hilton would subsequently become entitled by the terms of the policy in suit.

We have carefully read the record and are unable to accept this contention. It will be remembered that this case is presented on appeal as an action in equity, in which the duty is imposed on this tribunal “to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions, and upon trial de novo of such question or questions of fact, reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence, without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.” Comp. St. 1929, § 20-1925.

Both parties agree that at the time plaintiff was first employed by the defendant the agreement was, in substance, that in the event a settlement could be secured with the Travelers' Insurance Company of a certain claim of defendant Hilton without the institution of a suit no charges of attorney fees whatever would be made by plaintiff. Efforts to arrive at a satisfactory settlement with the Travelers' Insurance Company proved fruitless, and the plaintiff and defendant Hilton thereupon instituted an action at law against such insurance company.

The defendant's evidence on the subject of the agreement then made as to attorney fees which plaintiff was to receive is as follows: “Q. Was there anything said over the telephone about any attorney's fees? A. Yes, sir. I asked him about attorney's fees then, and he said, ‘Well, Emma Jayne, I don't want you to worry about any attorneys fees.’ He said, ‘If we win the suit,’ he said, ‘no doubt we will,’ he said, ‘they will allow me attorney's fees, and if we lose,’ he says, ‘I know your circumstances, and I will not charge you anything.’ ”

This evidence to the effect that the actual agreement by the terms of the contract was that the litigation was to be carried on for the compensation as determined by the court in the original case is corroborated by plaintiff's admissions as testified to by two witnesses.

Subsequently, and after entry of judgment in the case thus instituted, it appears from the evidence that defendant Hilton agreed to pay, and did pay, plaintiff an additional sum of $167.90, being 20 per cent. of the judgment so actually entered. Defendant says this payment was in the nature of a mere gratuity, and that she never agreed to any further additional payment. The evidence of plaintiff conflicts with these statements. But, in view of the corroboration of defendant's testimony, we feel compelled to accept it as stating the facts as to the terms of the original employment of plaintiff which form the binding contract of employment between these parties.

[1] The contract actually made is controlling. That the compensation it provides is inadequate is not appealing to the conscience of this court. An...