Zeitinger v. Hargadine-McKittrick Dry Goods Company
| Decision Date | 28 April 1923 |
| Citation | 250 S.W. 913,298 Mo. 461 |
| Parties | CHRISTIAN J. ZEITINGER et al. v. HARGADINE-McKITTRICK DRY GOODS COMPANY, Appellant; CHARLES A HOUTS, Intervener |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.
Affirmed.
Nagel & Kirby and Charles P. Williams for appellant.
(1) The overwhelming preponderance of the evidence showed clearly that the contract made by the Hargadine-McKittrick Dry Goods Company with intervener was a contingent one. If Mr. Houts were successful, he was to receive a generous fee; if not successful, he was to receive no fee at all, or, at most, a nominal fee and reimbursement for his expenses. Mr. Houts was not successful, and, therefore, was entitled, at most, to only a nominal fee. (2) This being an equity case, it is the settled practice in this State that the appellate court can review the evidence, and where the finding of the chancellor is against the decided preponderance of the evidence, can reverse his finding and judgment and enter its own judgment as in justice and equity should be entered. Daudt v Steiert, 205 S.W. 222; Cohron v. Polk, 252 Mo 281; Gottfried v. Bray, 208 Mo. 663; Glasgow Milling Co. v. Burns, 144 Mo. 196; Blount v. Spratt, 113 Mo. 54; Benne v. Shnecko, 100 Mo. 257. (3) The fee of five thousand dollars allowed by the court was not a nominal fee, but was (according to the petitioner himself) the reasonable value of the services rendered. While the court may give proper weight to the testimony of experts, it may disregard the same, and in a case of this character, the court it self is an expert on the question of attorneys' fees. The sum awarded is twice the amount intervenor placed upon his services when he sent his bill on February 8, 1919, after all of his services had been rendered.
Charles A. Houts and Randolph Laughlin for respondent.
(1) When there is no exception saved, objection to the judgment's waived. St. Louis v. Brooks, 107 Mo. 383; Johnson v. Terminal Ry. Co., 232 S.W. 239. (2) When the exceptionless appeal, they're like a worm beneath the heel. No matter how they writhe and squirm, the court will certainly affirm. O'Hara v. Berthold, 204 S.W. 1089; Everett v. Butler, 192 Mo. 564; Wallace v. Libby, 231 Mo. 341; Parkyne v. Churchill, 246 Mo. 109; State v. Morgan, 268 Mo. 265. (3) Appellant's case ain't worth a nickel; for reason, see Pickel v. Pickel, 176 Mo.App. 673, 677. (4) So here. Accept appellant's case at its full value; on its face, it shows a lot of idle chatter -- mere persiflage, devoid of matter, and futile, till the corporation takes note of the alleged oration, and writes "accepted" on its minute. This failing, there is nothing in it. See McCreery v. Garvin, 39 S.C. 375.
OPINION
In Banc
-- This is an appeal from the finding and judgment of the Circuit Court of the City of St. Louis, allowing the intervener, who is the respondent here, the sum of $ 5,000 for his services rendered as attorney to the Hargadine-McKittrick Dry Goods Company. The services consisted in the efforts of the intervener to have the company at the instance of its directors, declared a bankrupt about the time or just after a receiver had been appointed for the company by the Circuit Court of the City of St. Louis. Subsequently the receivership proceedings were pending upon an appeal by the company before the Supreme Court as of the April term, 1918. Before this appeal was determined the respective parties upon stipulations filed in the Supreme Court agreed to a reversal and remanding of the case. After the entry of this order and while the mandate issued by the Supreme Court had not been fully complied with by the St. Louis Circuit Court, this proceeding by the intervener was begun by the filing of a petition for the allowance of his compensation as attorney aforesaid. The issue as stated by the Dry Goods Company, the appellant here, is embodied in an inquiry as to what were the terms of the intervener's employment. He contends that there were no specific terms. The Dry Goods Company contends that there was a definite agreement in regard thereto. That if he were successful he was to receive a generous fee; if he failed he was to receive nothing or at the utmost but a nominal fee; that all of his outlays incurred in behalf of the undertaking, including traveling expenses, were to be paid by the company. He was unsuccessful and was reimbursed as to his expenses.
The evidence showed that at a meeting of the board of directors of the Dry Goods Company, January 6, 1917, the intervener appeared and explained to the board his plan for having the company adjudged a bankrupt, although at the time or thereabouts the State Circuit Court had indicated its purpose to appoint a receiver to take charge of the affairs of the company. It appears that the intervener was recommended to the board by Messrs. Kirby & Collins, attorneys who had represented the company in its litigation in the Circuit and Supreme courts. The alleged purpose in having the company adjudged a bankrupt, notwithstanding the proceedings in the circuit court, was to avoid the heavy expenses, large allowances for attorneys, etc., which it was thought would be incurred by the receivership.
According to the testimony of four of the members of the board of directors the understanding with the intervener was as above stated.
The terms of the agreement as testified to by the members of the board of directors is opposed by the testimony of the intervener and a variety of facts and circumstances connected with the transaction is introduced as corroborative of his testimony. Upon this testimony, discussed later, the issue was determined.
The case was tried upon its merits before the court, neither party demanding a jury, as ancillary to the receivership proceedings, resulting in a finding in favor of the intervener in the sum of $ 5,000. From this judgment an appeal was perfected by the Dry Goods Company to this court.
I. The motion to dismiss the appeal filed by the respondent, intervener, in this court, states not too clearly the grounds for same as being based upon certain provisions in the stipulations filed in the Supreme Court as of February 3, 1919, by the parties to the receivership proceedings, which other things provide that: "These costs shall include reasonable compensation to the receiver for his administration of the estate, with that of the referee, and the attorneys for the appellants, together with all reasonable attorneys' fees and other costs or expenses, which the receiver had incurred in the administration of this estate, and also, the compensation due plaintiff's attorneys for their services, and after the same have been taxed, they are to be paid out of the corpus of the estate in the hands of the receiver. . . .
"That this cause be remanded to the trial court for the purpose of entering a judgment dismissing the cause, as per the stipulations of the parties, and for the making of such further orders and entries as may be necessary to dispose of the litigation in the circuit court, as is provided by this and other stipulations, and for no other purpose, and that a mandate be issued out of this court accordingly."
And in addition, as supplementing the foregoing grounds, there are set forth certain portions of the mandate of the Supreme Court as of February 5, 1919, based upon the foregoing and other stipulations directing the circuit court: "To tax against the appellant" (The Dry Goods Company) "all costs, including reasonable compensation to the receiver for his administration of the estate of the appellant, together with all reasonable attorney's fees and other costs or expenses which the said receiver has incurred in the administration of the estate, and also the compensation due plaintiff's" (respondents in the receivership proceedings) "attorneys for their services, with disbursements, and the compensation due the referee and the attorneys for the appellant for their services, with disbursements, and to order all costs paid as and when allowed, out of the corpus of the estate now in the hands of the receiver, and to make such further orders and entries as may be necessary to dispose of the litigation and the estate in the said circuit court, in accordance with said stipulations of the parties filed in this court, and those heretofore executed and to be filed in said circuit court, and thereupon to dismiss the plaintiff's" (respondent's) "petition herein, in accordance with the said stipulations."
Other portions of the stipulations not cited by respondent here in support of his motion to dismiss the appeal are necessary to a determination of the meaning of the foregoing. In a stipulation filed in the circuit court January 30, 1919, it is provided that the word "Plaintiffs" (as used in the receivership proceedings) means both the original plaintiffs and the interveners.
It is further provided in effect in said stipulation that upon the receipt of the mandate from the Supreme Court reversing the case two trustees shall be selected, one by each of the attorneys of the respective parties, who shall hold the assets until the performance of these stipulations and disburse same as may be directed; that plaintiffs' attorneys shall submit their claims for compensation to the circuit judge who heretofore heard their claims in that behalf and he shall determine the amount of their compensation from the evidence heretofore submitted to him for consideration and now preserved in plaintiff's bill of exceptions on file, and from the abstracts, briefs and other documents in the Supreme Court, and on the basis of the decree having...
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