Whitwell v. City of Aurora

• Decision Date: 06 December 1909
• Citation: 123 S.W. 1045
• Parties: WHITWELL v. CITY OF AURORA.
• Court: Missouri Court of Appeals

123 S.W. 1045

WHITWELL v. CITY OF AURORA.

Springfield Court of Appeals. Missouri.

December 6, 1909.

Rehearing Denied January 6, 1910.

1. PLEADING (§ 291) — WRITTEN INSTRUMENTS — EXECUTION OF — GENERAL DENIAL.

Under Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), which provides that when a pleading is based upon any instrument in writing, charged to have been executed by the other party, and not alleged to be lost or destroyed, the execution shall be adjudged confessed, unless the execution is denied by the answer or replication, verified by affidavit, where the reply was of an unverified general denial, it did not put in issue the execution of a release pleaded in the answer.

2. PLEADING (§ 90) — GENERAL DENIAL — CONFESSION AND AVOIDANCE.

A general denial does not raise an issue, where it is followed by a special plea of confession and avoidance.

3. ATTORNEY AND CLIENT (§ 189) — ATTORNEY'S LIEN — NOTICE TO DEFENDANT — FAILURE TO GIVE — EFFECT.

Attorney's Lien Act (Laws 1901, p. 46) § 1 (Ann. St. 1906, § 4937-1) gives an attorney a

lien upon his client's cause of action. Section 2 (page 46) provides that attorneys may contract with their clients for a portion or percentage of any settlement of their cause of action, and, upon notice to the defendant of the agreement, it becomes a lien from the date of service of notice upon the cause of action, which cannot be affected by any settlement between the parties, and that if the defendant makes a settlement without the written consent of the attorney, he shall be liable upon the proceeds of the settlement for such lien. Held, that an attorney who has brought suit, and caused summons to be served, has a lien upon his client's cause of action, whether he gives the notice provided for in section 2 or not, which lien cannot be affected by any settlement between the parties.

4. ATTORNEY AND CLIENT (§ 190) — ATTORNEY'S LIEN — RELEASE BY PLAINTIFF — REMEDY OF ATTORNEY.

Where an attorney has a lien on his client's cause of action, and the client makes a settlement releasing the defendant, and the true consideration for the settlement is not contained in the release executed, it would not be binding upon the attorney, he being entitled to his part of the consideration, and he could institute and maintain an independent action against the defendant therefor.

5. RELEASE (§ 24) — AVOIDANCE — NECESSITY OF RETURN OF MONEY.

Where plaintiff asked the court to relieve him from a release he had executed to defendant, and upon which money had been paid to him, in order to avoid it, it was necessary that he return, or offer to return, the money paid.

Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Action by John Robert Whitwell against the City of Aurora. Judgment for defendant, and plaintiff appeals. Affirmed.

Oscar B. Elam, for appellant. James A. Potter, for respondent.

GRAY, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff in December, 1907, by falling on an alleged defective sidewalk of defendant city. The answer was a general denial, followed with the further defense that, after the suit was brought, and prior to filing the said answer, plaintiff, in consideration of the sum of $100 to him in hand paid, the receipt of which was acknowledged, executed the following release:

"Know all men by these presents, that, I, the undersigned, J. R. Whitwell, in consideration of the sum of one hundred dollars ($100.00) to me in hand paid by the city of Aurora, Missouri, the receipt of which is hereby acknowledged, do hereby fully release and forever discharge the said city of Aurora, from any and all actions, cause of actions, claims and demands, for, upon or by reason of any damage, loss or injury which heretofore have been, or which hereafter may be sustained by me in consequence of injury suffered and received by me while walking on the brick sidewalk on Madison avenue in Aurora, Missouri, in front of the Anable building in said city, on or about the Saturday night next before Xmas in December, 1907, said injury being received by falling on said walk by reason of slipping on said walk or stepping in a hole therein, and injuring my back, spine and left hip. It is further agreed and understood that the payment of the above sum of money by said city of Aurora, is not an admission of any liability whatever on the part of the city in consequence of the above-described accident and injury, but is made solely for the purpose of buying its peace with claimant and compromising any claim arising out of said accident.

"In witness whereof, I have hereunto set my hand this 25th day of June, A. D. 1909.

                                            his
                    "[Signed]        J. R. X Whitwell."
                                            mark
                

Plaintiff replied with a general denial of the allegations contained in the answer, and further alleging that the plaintiff was permitted by the court to prosecute the action as a poor person, and that the plaintiff employed Oscar B. Elam, an attorney at law, to prosecute the action for him; that said attorney had instituted the action and caused the service of summons to be had upon defendant, all of which defendant well knew, but after the institution of said suit, plaintiff and said attorney entered into an agreement by which the compensation of the attorney for services rendered in said cause should be 50 per cent. of any sum realized from a settlement of the action; that afterwards plaintiff and defendant entered into an agreement by which they secretly sought to settle and adjust the demand of plaintiff without the knowledge or consent of the court or said attorney, and without making any provision for the payment of the costs of the officers or said attorney, and in pursuance of said agreement between the plaintiff and the defendant, and for the purpose and with the intent of defrauding said officers and said attorney, the plaintiff did execute and deliver to the defendant the instrument set out in defendant's answer as a release against the defendant; that said agreement was immoral, against public policy, and void; that the actual damages of plaintiff were $5,000, and that the said attempted settlement was for a...