Tibbe v. Sayman

• Citation: 61 S.W.2d 376
• Decision Date: 20 June 1933
• Docket Number: No. 22499.,22499.
• Parties: TIBBE v. SAYMAN.
• Court: Court of Appeal of Missouri (US)

61 S.W.2d 376

TIBBE v. SAYMAN.

No. 22499.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Rehearing Denied July 3, 1933.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be published in State Reports."

Action by Anton A. Tibbe against Thomas M. Sayman. From judgment for plaintiff, defendant appeals.

Affirmed.

Geo. E. Mix, of St. Louis, and Wurdeman & Hoester, of Clayton, for appellant.

Adolph G. Schumacher, of Clayton, and Jesse H. Schaper, Randolph H. Schaper, and Anton A. Tibbe, all of Washington, Mo., for respondent.

McCULLEN, Judge.

This is an action brought by respondent, an attorney at law, hereinafter called plaintiff, against appellant, hereinafter called defendant, to recover for professional services rendered. A trial by the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $1,700. From that judgment, defendant appeals.

The evidence shows that plaintiff is an attorney at law, duly licensed and practicing in the state of Missouri, and at the time of the trial herein he was prosecuting attorney of Franklin county, Mo.

On March 15, 1930, defendant was sued for slander in the circuit court of Franklin county, Mo., by one Dayle Thompson, who alleged that defendant had publicly charged her, an unmarried woman, with having a child by one, Delk. Plaintiff in the slander suit claimed damages in the sum of $100,000 against defendant.

The case at bar is based upon the services rendered by plaintiff in representing defendant as his attorney in connection with and at the trial of the above-mentioned slander suit.

Defendant contends that the court erred in giving plaintiff's instruction No. 1. The instruction is as follows: "The Court instructs the jury that if you find from the evidence that plaintiff rendered services as attorney to the defendant at his instance and request in attending to his defense in the suit pending in the Circuit Court of Franklin County, Missouri, between the ____ day of November, 1930, and the 14th day of March, 1931, mentioned in the evidence in the case, then you will find the issues in this case for the plaintiff, Anton A. Tibbe, and allow him in your verdict such sum as you may believe from the evidence in the case, is the reasonable value of such services, if any, not exceeding the sum of twenty-five hundred dollars ($2,500.00), the amount sued for, unless the jury find from the evidence that defendant entered into a verbal contract with the plaintiff whereby the plaintiff agreed to accept and defendant agreed to pay the sum of one hundred dollars ($100.00) for plaintiff's services in the case."

No points or authorities are presented to support defendant's contention, but in the assignment of errors it is urged that it was error to give the instruction because it is predicated upon the fact that plaintiff attended to the defense of the Franklin county slander suit "between the ____ day of November, 1930, and the 14th day of March, 1931," and defendant's counsel contend that "all the evidence indicates that plaintiff was not actually employed by defendant until the 12th day of March, 1931." We are unable to agree with this contention. There was substantial evidence introduced by plaintiff which tended to show that plaintiff was employed in the latter part of November, 1930, by defendant, to represent him in the slander suit. The instruction was based upon the evidence in the case. It was within the evidence and the pleadings and thus conformed to the rule governing instructions in this respect. State ex rel. Central Coal & Coke Co. v. Ellison et al., 270 Mo. 645, 195 S. W. 722; Krelitz v. Calcaterra (Mo. Sup.) 33 S. W.(2d) 909. There was no error in giving the instruction.

The next complaint is that the court erred in giving instruction No. 2. It is as follows: "If the jury find for the plaintiff, Anton A. Tibbe, you will assess his damages at such sum as you may believe from the evidence such services, if any, were reasonably worth, and in fixing the value thereof, you may take into consideration not only the actual time and labor, if any, expended by the plaintiff for the defendant in attending to his defense in the suit mentioned in the evidence, but also the character of the litigation the amount involved, the responsibilities assumed by the plaintiff, as attorney for the defendant, in the case, if you so find, and the benefits derived by the defendant in the outcome of the case, in connection with all the facts and circumstances in evidence in the case in estimating the value of the services, if any."

No points or authorities are presented to support the complaint against this instruction. However, in the assignment of errors in defendant's brief it is contended that "said instruction assumes that the employment of plaintiff without a proviso in said instruction, they can only find for the plaintiff in case the jury found there was not an express verbal contract between plaintiff and defendant whereby defendant was to pay plaintiff $100.00 for his services." As will be noted, the contention is not clearly stated. We take it to be the intention to complain on the ground that the instruction assumes the fact of the employment according to plaintiff's version, without submitting therein a proviso containing defendant's version. It will be noted that the instruction begins with...