Opinion
No. 21521.
April 30, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, J. HENRY CARUTHERS, SPECIAL JUDGE.
Edward B. Wilkinson, James E. Campbell, Kansas City, for appellant.
Dwight Roberts, Kansas City, for appellee.
This is an appeal from a judgment in favor of Allan M. Fisher, plaintiff, and against John A. Peterson, defendant, for attorney fees in the amount of $2,135, and for $98.69 for costs advanced by plaintiff; total $2,233.69.
The case was tried to the court without a jury. Defendant contends that there was no contract, express or implied, whereby he employed plaintiff as his attorney, except in connection with legal work done by plaintiff in organizing two business corporations, for which he is willing to pay one-half of the amount of a reasonable attorney fee. He also denies that the amount allowed is reasonable. Plaintiff's theory is that he was employed by defendant to perform all of the legal services which, the evidence shows, he performed; and that the fees claimed, and for which he obtained judgment, were reasonable.
The undisputed evidence is that O. L. Sanford was engaged in the manufacturing business; that he owned certain real estate in Kansas City and in Johnson County, Kansas; that he also owned certain machinery equipment, used in his factory; that defendant was engaged in the merchandising business and owned and operated several retail stores; that, prior to January 1, 1948, defendant became interested in "buying into" Sanford's business; that Sanford was financially involved and owed some $41,504; that Sanford and defendant had attempted to negotiate a contract whereby defendant would acquire a one-half interest in the Sanford business; and that, on January 1, 1948, Sanford called plaintiff to his office, in the factory; where plaintiff met and conferred with Sanford and defendant.
As to what took place at this meeting, plaintiff testified to the effect that defendant told him that he was desirous of acquiring a half interest in the Sanford business because he wanted to handle some of the Sanford products in his retail stores, and because he wanted to engage in the manufacturing business, but that he had run into some snags in settling a large amount of indebtedness owed by Sanford; that he, defendant, would only invest in the enterprise some $25,000; that if the indebtedness could not be compromised and settled for about that amount he could not acquire an interest in the Sanford business; that he might, if necessary, invest $5,000, or possibly $10,000 more, if Sanford's total indebtedness could be settled for such an amount; that defendant had agreed with Sanford to that effect; that they had agreed that, if the indebtedness could be so settled, defendant would furnish the money to pay said indebtedness, and they would organize two corporations, to which the Sanford business and property would be transferred, each of the parties to own 50% of the stock; that defendant's attorney had died and he then had no attorney. Plaintiff drew a contract between Sanford and defendant, setting forth their agreement. In that connection plaintiff testified as follows: "Question: Who asked you to draw that contract? Answer: Mr. Peterson."
Plaintiff testified as follows: "And Mr. Peterson told me at that time that the main reason he needed a lawyer was because they had run into some snags in settling these accounts payable, and he wanted me to handle the settlement of those accounts for him, because if they could not be settled then it wouldn't be possible for him to go into the Sanford business. * * * Mr. Peterson asked me if I would handle these various matters and settle them for him, and if I would form the corporations that were mentioned in the agreement between him and Sanford. I told him that I would."
If we accept as true the testimony of plaintiff, that defendant asked him to compromise and settle the Sanford indebtedness, and to form two corporations, all as mentioned in the contract drawn by plaintiff at the instance and request of defendant, as plaintiff stated, and that plaintiff performed said services satisfactorily, then we must hold that a contract for employment of plaintiff came into existence between the parties; and that plaintiff is entitled to be paid a reasonable amount for his services. Weinsberg v. St. Louis Cordage Company, 135 Mo.App. 553, 566, 567, 116 S.W. 461; Leahy v. Lemp, Mo.App., 214 S.W. 228.
However, defendant denied that he requested plaintiff to perform any services except with reference to formation of the corporations, for which services he stated that he is willing to pay an amount equal to one-half of the reasonable value. He testified to the effect that plaintiff was Sanford's attorney and was, at that time, representing him in an effort to compromise the very indebtedness mentioned in evidence; that Sanford called plaintiff to his office; that defendant took to part in the conversation between plaintiff and Sanford; that he, defendant, had no interest in the settlement of Sanford's indebtedness but was willing to invest about $25,000 in the business if Sanford could settle the claims; that he did not ask plaintiff to try to settle said claims, or to do anything else for him; that whatever plaintiff did he did it for Sanford.
Thus, the testimony of defendant, relative to the existence of a contract for employment of plaintiff, sharply contradicts that of plaintiff. Such a conflict of evidence is, ordinarily, for the trier of the facts. The trial judge saw and heard the witnesses and has found that a contract of employment was made.
However, we are required to review cases tried to the court, without a jury, as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Section 114(d), Laws Mo. 1943, p. 388, R.S. 1949, § 510.310, subd. 4. We conclude that the evidence establishes that a contract was made. We are influenced in reaching that conclusion not only by the above testimony of the parties, but also by certain facts hereinafter mentioned.
It appears from the testimony of plaintiff, and of his stenographer, as well as that of defendant, that numerous conferences took place between plaintiff and defendant regarding the settlement of the various claims involved. Some of these conferences were in person, and some by telephone. Letters were exchanged between them. Plaintiff followed defendant's instructions in connection with the handling of all matters mentioned in the original contract, and defendant furnished checks with which to pay all sums that were paid in settling said accounts. After one of the corporations had been completed, as to organization, and after the papers had been forwarded to the office of the Secretary of State, defendant instructed plaintiff to recall the papers from that office before they were acted upon, which plaintiff did. These facts indicate that plaintiff took all of his instructions from defendant; that defendant considered it his right to direct and control plaintiff's actions in performing the services, and that plaintiff accepted all instructions from defendant. Nowhere does it appear that Sanford ever talked to plaintiff, ever gave him any instructions as to matters being handled, or was ever present when plaintiff conferred with defendant concerning these various matters, except on their first meeting.
However, defendant contends that he received no benefit from plaintiff's services, although he admitted that such services were satisfactorily performed, in every detail, so far as he knew, according to defendant's instructions and wishes. He claims that Sanford, alone, benefited from the compromise of Sanford's indebtedness. It may be observed that the arrangement between defendant and Sanford, as to engaging in the manufacture and sale of Sanford products through the corporations heretofore mentioned, was abandoned at about the time organization of the corporation was completed. If the business arrangement, which was contemplated at the time plaintiff began the performance of the services herein mentioned, had been finally carried out, defendant might have acquired a half interest in a valuable business venture. He evidently expected the business to be profitable, because he was willing to invest some $35,000 in the venture; and he is an experienced and successful business man. We mention these facts because such facts and circumstances tend to support our finding to the effect that plaintiff was employed by defendant, not by Sanford.
Defendant contends that the court erred in permitting two lawyer witnesses to answer a hypothetical question, as experts on the question of the reasonable value of services rendered by plaintiff.
Admission of the testimony is criticised because the question, as framed, is said to misquote the evidence, assume facts not in evidence, omit facts that were in evidence, and is so misleading as to form no basis for opinion evidence on the question.
It was assumed in the question that plaintiff spent two months of his time on the work for which he seeks judgment, whereas his own evidence shows that he only spent some part of 32 days on this work, not 60 full days, the entire period during which the work was done. It is true that an important element to be considered in determining the amount of compensation to which an attorney is entitled for services is the time necessarily consumed in performing said services. 143 A.L.R. 682. However, as was well said by one of the lawyer witnesses, the time consumed is not the only element to be considered.
One of the witnesses recounted the various services rendered by plaintiff in this case, and expressed his opinion, as to the value of each of said services. He estimated the total reasonable value of said services to be not less than $3,500, and stated that $5,000 would not be an unreasonable amount.
The trial judge heard the testimony as to the kind and character of the services rendered. Plaintiff testified to such facts in detail, both on direct and cross-examination, and the judge was fully advised as to the time spent, the importance of the matters handled, and the skill with which plaintiff performed the services. Said services consisted of the following: Settlement of the following claims: Engel $30,750, for $6,625, General Finance Company, $7,554, and six other claims totaling some $3,200 for a sum far less than the face amount; and of drawing a contract, advising on a labor matter affecting the proposed business of defendant and Sanford, forming two business corporations, drawing two warranty deeds after locating abstracts and checking descriptions and title, several appearances in court, drawing bills of sale and lengthy schedules of property, several conferences with defendant, and some mail correspondence.
The judge himself was an expert on the matter of the reasonable value of the services rendered. True, the judge stated that he did not live in Kansas City and was not informed as to the schedule of fees customarily charged by lawyers here; but it was shown that no generally recognized schedule of lawyer fees exists in this jurisdiction. This court is qualified to determine the reasonable value of legal services rendered in this jurisdiction when informed, as we are in this case, of the extent and nature of the services rendered, and of the success obtained in achieving the desired objective.
We think the fee allowed was reasonable.
Finally, it is urged that the court erred in basing his judgment on facts which were not in evidence. This contention is based on the fact that the trial judge stated that he was influenced to find for plaintiff (on the theory that a contract existed between plaintiff and defendant), because plaintiff did not join Sanford in this action. Whether the court was justified in assuming plaintiff would have joined Sanford had plaintiff not considered his employer to be the defendant, is not material. There was ample evidence to establish the existence of a contract of employment exclusive of the inference, or assumption, above mentioned. If the court erred in relying on such assumption, the error is harmless. We find that the evidence, when considered as a whole, establishes that a contract of employment existed between plaintiff and defendant.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.