Wickwire v. Martin, 708.

• Decision Date: 10 February 1933
• Docket Number: No. 708.,708.
• Citation: 63 F.2d 64
• Parties: WICKWIRE v. MARTIN.
• Court: U.S. Court of Appeals — Tenth Circuit

63 F.2d 64 (1933)

WICKWIRE v. MARTIN.

No. 708.

Circuit Court of Appeals, Tenth Circuit.

January 10, 1933.

Rehearing Denied February 10, 1933.

Edward J. Fleming, of Tulsa, Okl. (Arthur M. Wickwire, of New York City, on the brief), for appellant.

Villard Martin, of Tulsa, Okl. (Geo. S. Ramsey, Edgar A. deMeules, and Garrett Logan, all of Tulsa, Okl., on the brief), for appellees.

Before LEWIS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

McDERMOTT, Circuit Judge.

The appellant, a New York lawyer, filed two claims for legal services rendered to the Monarch Royalty Corporation, then in receivership. The first was for services rendered prior to the appointment of the receiver, alleged to be of the value of $3,000, upon which $500 had been paid. The second was for $500 for services rendered after the appointment of the receiver; the claims were so separated by the direction of the court. The claims and the objections of the receiver to their allowance were referred to a Special Master, who recommended their disallowance. The trial court approved, and this appeal follows.

The evidence disclosed that the Attorney General of the State of New York had instituted a suit to enjoin the sale of stock of the corporation. Two brokerage firms were joined as defendants, and a temporary restraining order was issued. The corporation was represented by its general counsel in Tulsa, and by two New York counsel. One of the defendant brokerage firms was represented by appellant. The restraining order was dissolved, and appellant was paid a fee of $2,000 by his then client. Thereupon the corporation employed appellant to assist its other counsel in an effort to induce the Attorney General to discontinue the litigation. The appellant familiarized himself with those aspects of the case with which he was not already familiar by virtue of his former employment, and had a number of conferences with the Deputy Attorney General, in which it was proposed to make certain changes in the board of directors, and in the corporation's methods of doing business, if the Attorney General would discontinue the litigation. The Deputy Attorney General displayed a receptive attitude toward the proposal, but first desired to be furnished with certain data relative to the value of the corporate properties. While awaiting for that data, the corporation proposed that in order to be relieved of the litigation promptly, its properties be transferred to a new company, and that a permanent injunction might be issued against the corporation. Appellant presented the proposed plan of reorganization to the Attorney General who acquiesced therein. Before a formal stipulation could be executed, a receiver was appointed for the corporation, and the negotiations terminated. Appellant testified that his work fell into two distinct phases, the first phase being that part which had to do with an effort to induce the Attorney General to dismiss the injunction suit, and the second phase having to do with the consent of the Attorney General to the proposed reorganization. Appellant testified that when he was originally retained, only the first phase was in contemplation; and that he told the president of the corporation who retained him, "that for such services I thought I should receive not less than $2,500.00; and I understood from the fact that he proceeded, that this was satisfactory to him." He was paid $500, prior to receivership, by the corporation. Appellant testified that his services on the first phase were conservatively worth $2,500, and his services on the second phase amply worth $1,000. He also introduced evidence of an expert witness that all the services rendered "were reasonably worth at least $3,500, and a higher charge would have been justified."

The first claim of appellant, for services rendered prior to the receivership, recites that the corporation was indebted to him in the sum of $2,500; that the consideration for said claim was legal services "of the value of $2,500"; that the total amount of the services rendered prior to the receivership was $3,000, upon which $500 had been paid. The second claim is for legal services rendered after the receivership "of the value of $500."

The appellant now contends that $2,000 of his first claim is predicated upon an express contract. The language of the claim is to the contrary. There is not a word in the claim from which an inference can be drawn that appellant was declaring upon an express contract. Not only that, but the claim uses language which is appropriate only to a declaration on quantum meruit. The claim distinctly states that its consideration is the rendition of legal services "of the value of $2,500." Still further, the position of the appellant now is that his first claim embraces two items, to wit, an unpaid balance of...