Weinstein v. Laughlin

Decision Date06 September 1927
Docket NumberNo. 7759.,7759.
Citation21 F.2d 740
PartiesWEINSTEIN v. LAUGHLIN et al.
CourtU.S. Court of Appeals — Eighth Circuit

Harry S. Gleick, of St. Louis, Mo. (Joseph H. Grand, Greensfelder, Rosenberger, & Grand, and H. A. Gleick, all of St. Louis, Mo., on the brief), for plaintiff in error.

Jacob M. Lashly, of St. Louis, Mo. (Horace L. Dyer and Robert A. Holland, Jr., both of St. Louis, Mo., on the brief), for defendants in error.

Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.

MOLYNEAUX, District Judge.

The plaintiff in error, hereinafter referred to as plaintiff, an attorney at law, sued the defendants in error, hereinafter referred to as defendants, attorneys at law, on a contract whereby plaintiff was employed by defendants to render legal services as required in certain litigation for defendants. By the terms of the contract defendants were to pay plaintiff for such services one-fourth of the fee that should be collected by defendants from their client.

The defendants, by their answer to the amended petition filed by the plaintiff, admitted the employment on the terms alleged, but denied that plaintiff had performed any of the services called for by the contract, but had obstructed the defendants in said litigation, and that, by reason of plaintiff's failure to perform the duties imposed upon him by the contract, he was not entitled to recover anything against the defendants.

The defendants further alleged that they had paid the plaintiff $1,000 in advance for said services to be performed, and had also advanced and paid to plaintiff $1,000 as an expense fund and asked judgment against plaintiff for the sum of $2,000.

Plaintiff by his reply admitted the receipt by him of said sums of money, and alleged he had properly expended $40 of said expense money under the terms of his agreement, and stated that he was ready to account for the balance, $960.

On the issues joined, the case was tried to the court and a jury.

The testimony introduced at the trial was conflicting, and would have sustained a verdict for either party.

The trial judge instructed the jury that, if the plaintiff had complied with the contract, or if his failure to comply to the letter of it was not due in any sense to his fault, that if he acted honestly, diligently, and in entire good faith, making every effort that was reasonably possible for an attorney to make on behalf of his client, then he was entitled to recover on his cause of action 25 per cent. "of whatever sum you may find was actually paid to the defendants in the case, less expenses, and less the $1,000. He is entitled to one-fourth of all they got, less expenses they paid, and ought to account, in diminution of that one-fourth, for the $1,000 retainer that he received."

The court further instructed the jury that, if they found that plaintiff was not entitled to recover of defendants on their cause of action, then the defendants would be entitled to recover of plaintiff the $1,000 retainer fee and $960 unexpended expense money. The jury returned a verdict as follows:

"We, the jury in the above-entitled cause, find the issues herein joined under the amended petition of the plaintiff in favor of the defendants, and against the plaintiff. And we find the issues herein joined under the amended answer and counterclaim of the defendants in favor of the defendants and against the plaintiff, and assess the damages of the defendants against the plaintiff in the sum of $960, together with interest thereon at the rate of 6 per cent. per annum from March 15, 1926, to date, amounting to $13.76, making an aggregate finding in favor of the defendants and against the plaintiff, under said answer and counterclaim in the sum of $973.76.

"Signed D. D. Dudley, Foreman."

Whereupon the court entered judgment on said verdict in accordance with the terms thereof, by which it was adjudged that the plaintiff in error take nothing by his suit in his behalf against defendants in error, and that defendants in error go hence without day under the cause of action set out in the amended petition of plaintiff in error, and recover from said plaintiff in error their costs and charges herein. It was further adjudged that defendants in error, under their counterclaim, have and recover from plaintiff in error the sum of $960, with interest.

1. The question which we are asked to consider is stated thus by plaintiff:

"Plaintiff in error submits on appeal only one question. The verdict of the jury is an anomaly; it is not responsive to the issues; it fails to follow the instructions of the trial court. The finding on plaintiff's cause of action is inconsistent with the finding on the counterclaim, and it failed, therefore, to decide the one and only issue in the case, whether plaintiff breached the contract."

In plaintiff's assignments of error, filed with the clerk of the court below with his petition for a writ of error, we find the following:

"Fourth. That the court erred. * * *

"Fifth. That the verdict was a compromise verdict, in that the jury found the issues against the plaintiff and in favor of the defendants upon the plaintiff's petition and found in the sum of $1,000 for the plaintiff and against the defendants upon the defendants' counterclaim, and that it is patent upon the face of the record that the verdict is inconsistent in both law and evidence."

There are other assignments of error filed in connection with the petition with the clerk of the court below, all of which, except the one quoted, are abandoned by the plaintiff. There are no assignments of error at all in plaintiff's brief, unless we may consider plaintiff's statement of the question presented for the consideration of the court as an assignment of error in compliance with rule 24 of this court.

Nowhere does plaintiff assign as error any ruling or holding or charge of the lower court and no exception was saved in the lower court to any ruling of the court on any question presented here.

The question which plaintiff is asking this court to pass upon was not raised in or presented to the lower court, and the lower court has not ruled upon, nor been asked to rule upon it, nor had any opportunity to rule upon it.

The question sought to be raised here might have been raised in the lower court and presented for its ruling by the plaintiff objecting to the reception of the verdict by the court and by asking that the jury be instructed to reconsider the case and bring in a proper verdict; or the question might have been raised by objecting to the entry of judgment on said verdict or by a motion to set aside and vacate the judgment after it was entered, and the ruling of the court, if properly excepted to, would have been subject to review in this court.

This court will review only rulings made by the lower court on questions presented to that court for its consideration and when exception to such ruling is duly saved. This should dispose of the case. Schneider Brewing Co. v. American Ice Mach. Co. (C. C. A.) 77 F. 138; Keator Lumber Co. v. Thompson, 144 U. S. 434, 12 S. Ct. 669, 36 L. Ed. 495; Parks v. Turner, 12 How. (53 U. S.) 39, 13 L. Ed. 883; Laber v. Cooper, 7 Wall. 565, 19 L. Ed. 151; Town of Brooklyn v. Ætna Life Ins. Co., 99 U. S. 362, 25 L. Ed. 419; Roach v. Hulings, 16 Pet. 319, 10 L. Ed. 979; Townsend v. Jemison, 7 How. (48 U. S.) 706, 12 L. Ed. 880; Shaw v. Merchants' Nat. Bank, 101 U. S. 557, 25 L. Ed. 892; Lesser Cotton Co. v. St. L. I. M. & S. Ry. Co. (C. C. A.) 114 F. 133; Bort v. McCutchen & Co. (C. C. A.) 187 F. 798; Board of Commissioners v. Sutliff (C. C. A.) 97 F. 270; Hecht v. Alfaro (C. C. A.) 10 F.(2d) 464; Choctaw, O. & G. R. Co. v. Jackson (C. C. A.) 192 F. 792; Board of Commissioners v. Home Savings Bank (C. C. A.) 200 F. 28; Eberhart v. United States (C. C. A.) 204 F. 884, 896; Maynard v. Reynolds (C. C. A.) 251 F. 784; United Mine Workers of America v. Coronado Coal Co. (C. C. A.) 258 F. 829; Simmons Hdwe. Co. v. Southern Ry. Co. (C. C. A.) 279 F. 929; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; Federal Mining & Smelting Co. v. Hodge (C. C. A.) 213 F. 605; Railway Officials' & Employés' Acc. Ass'n v. Wilson (C. C. A.) 100 F. 368, 373; Mercantile Trust Co. v. Hensey, 205 U. S. 298, 27 S. Ct. 535, 51 L. Ed. 811, 10 Ann. Cas. 572; Wood v. Wilbert's Sons, 226 U. S. 384, 33 S. Ct. 125, 57 L. Ed. 264; Behn v. Campbell, 205 U. S. 403, 27 S. Ct. 502, 51 L. Ed. 857; Connell Bros. v. Diederichsen & Co. (C. C. A.) 213 F. 737; In re Federal Contracting Co. (C. C. A.) 212 F. 693; Baker Contract Co. v. U. S. (C. C. A.) 204 F. 390; Brennan v. Tillinghast (C. C. A.) 201 F. 609; Boquillas Land & Cattle Co. v. J. N. Curtis, 213 U. S. 339, 29 S. Ct. 493, 53 L. Ed. 822; De Rodriguez v. Vivoni, 201 U. S. 371, 26 S. Ct. 475, 50 L. Ed. 792; Badger v. Ranlett, 106 U. S. 255, 1 S. Ct. 346, 350, 27 L. Ed. 194; Wilson v. McNamee, 102 U. S. 572, 26 L. Ed. 234; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678.

However, we have considered the question presented here as to the legality of the verdict, and we are of the opinion that the verdict is valid, and that the judgment entered thereon is valid. In clear and unmistakable language the jury decided all of the issues in the case against the plaintiff and in favor of the defendants.

The issue joined between the plaintiff and defendants on plaintiff's amended petition was whether or not plaintiff had breached his contract. If he had done so, he was not entitled to recover against defendants. On this issue the jury said:

"We, the jury in the above-entitled cause, find the issues herein joined under the amended petition of the plaintiff in favor of the defendants, and against the plaintiff."

No clearer language could have been used. The jury also decided the issue under the counterclaim in favor of the defendants. Their language, "And we find the issues herein joined under the amended answer and counterclaim of ...

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