Tucker v. Dudley

• Decision Date: 14 November 1960
• Docket Number: No. 456,456
• Citation: 164 A.2d 891,223 Md. 467
• Parties: Whitely H. TUCKER v. David I. DUDLEY.
• Court: Maryland Court of Appeals

Page 467

223 Md. 467

164 A.2d 891

Whitely H. TUCKER v. David I. DUDLEY.

No. 456.

Court of Appeals of Maryland.

Nov. 14, 1960.

Fletcher Krause, Baltimore (William R. Sutton, Baltimore, on the brief) for appellant.

Walter V. Harrison, Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

This appeal is from a decree of an equity court awarding the sum of $1,500 to the appellee, as a fee for legal services rendered to the appellant, out of funds paid to the clerk of court pursuant to a decree of interpleader, the balance of said funds, after deduction of court costs, to be paid to the appellant.

It is undisputed that early in January, 1959, Tucker, who was employed as a steel foreman by Armco Corporation asked Dudley to represent him in negotiations for a property settlement with Tucker's former wife, who had obtained a divorce a vinculo from him in 1957. It seems that after the parties separated in 1955 she had continued to live, with the two Tucker children, at 131 North Symington Avenue, in the dwelling house owned by them in fee simple as tenants by the entireties. Apparently the divorce decree provided support for the children but no alimony. The effect of the decree was, of course, to convert the tenancy by the entireties into a tenancy in common. Keen v. Keen, 191 Md. 31, 37, 60 A.2d 200. In 1958, she married Dr. Rudoff, who moved into the house, but it appears that they wished to move into a larger house and communicated to Tucker their desire that he agree to a sale and division of the proceeds.

According to Dudley, he wrote Mrs. Rudoff that he had been retained to represent her former husband in the partition of the property. She retained Mr. Deems Barnard, who submitted to Dudley a statement setting forth certain items claimed to have been paid by her since the parties separated in May, 1955--mortgage payments ($3,071.25), taxes ($805), repairs ($210), conversion of upstairs apartment ($1,400), a total of $5,486.25. The unpaid balance on the mortgage at that time was $3,950.26, and an offer of $13,900 had been received for the property. Prior to the separation Tucker had paid all the charges against the property. Dudley testified he showed these figures to Tucker, and Tucker agreed they were correct. Dudley admitted that he never visited the property, never had it appraised, did not examine the title, or make any effort to verify the payments claimed by Mrs. Rudoff. He and Tucker 'figured' the net amount to be divided by husband and wife was $3,463.49 (as a plain matter of arithmetic it was $4,463.49), and that the husband's share would be $1,731.74 (actually it should have been $2,231.74). Tucker said, 'Well, that's it,' but Dudley said, 'Let's try to get $5,000.' He did not suggest that there was any legal basis for contesting Mrs. Rudoff's claims of set-off, nor did he suggest that Tucker would have any claim for a share in the household furniture, or in the rent of the apartment, $70 a month, which Mrs. Rudoff had retained, or for her use and occupation. Dudley admitted he did not know that she had received rent for an apartment. 'I felt as though Mrs. Rudoff and her new husband wanted to buy a $29,000.00 home and she had her heart and soul set on this home.' Dudley put the $5,000 proposition to Barnard the next day. It was promptly accepted. On January 31, 1959, Dudley prepared, and the parties executed, a written agreement reciting that a contract for the sale of the property had been signed, that Tucker should receive $5,000 as his share regardless of the sales price and that all personal property, such as furniture, should belong to Mrs. Rudoff.

On March 12, 1959, Dudley wrote to Miles and Stockbridge, representing the purchasers, stating that he would be present at the settlement on March 20, 1959, informing them of the terms of the written agreement of January 31, 1959, and requesting that two separate checks be made out, one to 'Mrs. Rudoff for her share and the other to Mr. Tucker and myself as his Attorney, thus avoiding any complications that may arise.'

Dudley testified that a few days before the settlement Tucker asked him what his fee would be. There had been no previous conversation on the subject. Dudley said: 'I'll take one-third, that is my figure of whatever we get.' He did not testify that Tucker agreed to this. He and Tucker attended the settlement. It appears that a few days before Tucker had mentioned the fact that he had collected $900 upon the surrender of a policy on his life, apparently taken out in connection with the mortgage loan on the property, on which both parties were liable, and had agreed to pay one-half to Mrs. Rudoff. Since Tucker had not paid it, Dudley did so at the settlement, by his own check, for $480.85, which included $30.85 for an adjustment of taxes. This sum was subsequently repaid to him by Tucker. The deeds were then signed, and Dudley took the check for the $5,000, payable to Tucker and Dudley, attorney. They returned to Dudley's office, and Dudley calculated and wrote on a slip of paper 'one-third of the gross of $5,419.15.' This came to '$1,806.38'. He told Tucker, 'This $5,000 was merely a shot at the moon and we hit, and I said, 'In view of that, I think I am entitled to one-third,' and he hemmed and hawed around. I said, 'Make it $1500,' and he said, 'That's a deal." There was no written agreement. They went to the Union Trust Company branch and arranged for the collection of the check. They both signed the check, and Tucker said he was 'well pleased with everything.' But a few days later Tucker came to Dudley's office and said a friend had told him 'even $1,500 was too much,' and 'for his part the check would remain in the bank forever.' Eventually, the bank instituted the interpleader proceedings, in which Dudley was designated as the plaintiff, and Tucker the defendant.

Tucker's version of what occurred is somewhat different. He testified that the first time Dudley mentioned a fee was after the settlement, in Dudley's office. He asked Dudley, 'What's this going to cost me?' Dudley said, 'We'll see.' Dudley was writing on a piece of paper and said '$1,500'. Tucker replied: 'That seems like a hell of a lot of money for what you have done.' Dudley said: 'That's my fee.' Tucker never agreed to a $1,500 fee, or any other fee. Dudley never sent him a bill. Dudley had asked him in January what he thought the property was worth. Allowing for the amounts paid on the mortgage by Mrs. Rudoff, he figured 'roughly $10,000.' He told Dudley he would be satisfied with $5,000 as his share. Dudley drew the contract for that amount, and he signed it.

The interpleader proceeding instituted by the bank, as a stakeholder, recited that it had proffered payment by check payable to both the claimants of the amount collected, but that the full sum was claimed by each. Tucker answered, claiming the whole amount, as the net balance due him from the sale of the property, and alleging that Dudley had 'no just claim or right thereto, or lien thereon, legal or equitable'. Dudley answered, alleging that the $5,000 represented the collection by him, as attorney for Tucker, of a disputed claim, and that Tucker had promised to pay him a fee of $1,500 'from said collection'. In this posture of the case, it would seem that the first question presented is whether interpleader was properly granted.

It is clear that Dudley acquired no lien upon the sum collected by the Bank and paid into court. In Maryland no charging lien in favor of an attorney for his fee is recognized, even where a claim is reduced to judgment or money paid into court. See Ashman v. Schecter, 196 Md. 168, 176, 76 A.2d 139; Maddox v. District Supply, Inc., 222 Md. 31, 37, 58 A.2d 650; United States v. 72.71 Acres of Land, etc., D.C.D.Md., 167 F.Supp. 512. The retaining lien, recognized in Maryland, is based on possession; but the fund in the instant...