Warder v. Seitz

• Decision Date: 15 May 1900
• Court: Missouri Supreme Court
• Parties: WARDER v. SEITZ.

57 S.W. 537

157 Mo. 140

WARDER v. SEITZ.

Supreme Court of Missouri, Division No. 1.

May 15, 1900.

ATTORNEY AND CLIENT — FEES — PLEADING — QUANTUM MERUIT — EVIDENCE — EMPLOYMENT — LAY SERVICES — EXPERT TESTIMONY — INSTRUCTIONS.

1. In an action by an attorney for fees, the petition alleged that, at the time of the employment, plaintiff told defendant that the customary fee for securing a compromise before suit was 5 per cent., and a collection after suit, 10 per cent., and further alleged that the services were rendered at the special instance and request of defendant, and were reasonably worth a certain sum. Held, that the petition is properly one on quantum meruit, and the trial court did not err in so treating it, where it appeared that plaintiff secured for defendant a compromise of a disputed claim.

2. In an action by an attorney for legal services, it appeared that defendant, though acquainted with plaintiff, did not know that he was an attorney, and, after relating to him an interest she had in an impending will contest, asked him to refer her to a good lawyer, which he did. He took a great interest in her affairs, and talked with her in an advising manner, and some time later advised her to consult a prominent citizen, not a lawyer, who advised her to accept an offer of compromise. Held that, though plaintiff had performed services in the matter, the court erred in refusing to instruct the jury, on behalf of defendant, that, if they believed from the evidence that defendant did not employ plaintiff, they should find for defendant.

3. In an action by an attorney for legal services, it appeared that defendant, though acquainted with plaintiff, did not know that he was an attorney, and, after relating to him an interest she had in an impending will contest, asked him to refer her to some good lawyer, which he did. He thereafter took considerable interest in her affairs, and talked with her in an advising manner, and induced her to consult with a person not a lawyer, who advised her to accept a proffered compromise. Held that, though plaintiff performed considerable services, it was error for the court to refuse an instruction, asked by defendant, that, if they found from the evidence that the services performed were not legal services, they were not warranted in considering expert testimony as to their value.

Appeal from circuit court, Jackson county.

Action by George W. Warder against Ann Caroline Seitz to recover attorney's fees. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The petition alleges that about March 5. 1896, the defendant employed him as an attorney and counselor at law in connection with her interest in the estate of her deceased brother, George Sheidley; that her brother died testate on the 2d of March, leaving the defendant and her sister, Sarah Matilda Sheidley, and her two brothers, Henry and William, as his only heirs, and leaving an estate worth $800,000; that by his will he devised to Henry $60,000, to William $100,000 in stock, and lands worth in all $70,000 or $80,000, to the defendant $20,000, and to defendant's three sons $10,000 each, and the remainder of his estate he devised to his sister Sarah Matilda Sheidley; that the defendant was dissatisfied with the will, and wanted one-fourth of the estate, or $200,000, and hence she employed plaintiff as her attorney and counselor to examine and investigate the will, the property and its value, the soundness of the testator's mind, and the undue influence of Sarah Matilda Sheidley, for the purpose of contesting the will and recovering her interest as heir, and to compromise the matter with her sister. The petition then charges "that at the time he was so employed by defendant he informed her that the customary fee for such services was five per cent. if settled out of court, and ten per cent. if settled after suit, upon whatever amount she received; that defendant made no objection to said fee, but instructed plaintiff to take charge of her interests, and proceed in the premises to secure a settlement by compromise, or, failing in that, to bring suit to break and set aside said will." It is then averred that plaintiff did take charge of defendant's interests, "at her special instance and request," and rendered continuous legal services from the 5th of March to the 1st of June, 1896, "when, through his services, a satisfactory compromise and settlement was completed, whereby defendant received one hundred thousand dollars, instead of twenty thousand dollars"; that plaintiff made briefs of the law and the evidence to be used in the will contest, and of all testimony obtainable affecting the sanity of, and the undue influence exercised over, the testator, examined the property, and was occupied for 2½ months in the work. The petition then avers that the services rendered the defendant "at her special instance and request" were reasonably worth $5,000, on which the defendant had paid $300 on May 17th, and prays judgment for $4,700, with 6 per cent. interest from June 1, 1896. The answer is a general denial, and a special plea that the claim of plaintiff had been compromised, settled, satisfied, and discharged. The reply is a general denial. The trial was had on February 20, 1897, and the jury returned a verdict for $3,575, and after proper steps the defendant appealed.

Warner, Dean, McLeod & Holden, for appellant. Wallace & Wallace and Fyke, Yates, Fyke & Snyder, for respondent.

MARSHALL, J. (after stating the facts).

The plaintiff introduced evidence tending to prove the allegations of his petition, and tried his case upon the theory of a direct employment of him as an attorney at law by the defendant, without any direct or express contract as to the amount to be paid him, further than that he told her that the usual charge was 5 per cent. if the case was settled out of court, and 10 per cent. if it was settled after the suit was commenced, and that he was to furnish the bond for costs (she was a nonresident), and, if she did not receive anything in excess of the $20,000 devised her by the will, he was not to charge her anything, but he was to have the per cent. above specified on all excess over $20,000 recovered. Plaintiff detailed all the services he rendered, and claimed that the $100,000 recovered was the result of his services. He also said that when the controversy was settled by compromise out of court, and the money and securities were received by her, she asked him for his bill, and he told her he had failed to make it out, but would do so, and send it to her the next day. The next day, before he had rendered his bill, he received from her a check for $300, with the following note: "Friend Warder: At your proposition to pay you whatever I thought right for services, I herewith inclose you a check for $300.00, the same as I will have to pay son Earl Seitz. Appreciating all your kindness, I beg to remain, your friend, Caroline Seitz." The plaintiff answered the note the next day, acknowledging the receipt of $300, and saying he had credited it upon her account, and asking her to send a check for the balance on Monday or Tuesday. The defendant's son Earl married the daughter of Mrs. John B. Warder, and the plaintiff is Mrs. Earl Seitz's third cousin. The defendant lives in Ohio, and came to Kansas City with her sons to attend the funeral of her brother, and, after the funeral, went to board at Mrs. Warder's house, where the plaintiff...