Remley v. Johnson County Savings Bank , 52 Iowa 575 ( 1879 )

Rotitrock, J.

i^ttobney’s of: contract. The written agreement upon which the plaintiffs ground their recovery is in these words:

“It is understood between the undersigned that Pinch & Lucas will foreclose mortgage of Johnson County Savings Bank against Win. Crum, now in their hands, and attend to the business of said foreclosure and sale of property for the sum of $100, no matter how much the court will assess as attorney’s fees in the case.

Finch & Lucas,

December 28,1878. William Crum.

There was -a demurrer to the answer. Afterwards the answer ivas amended, and no ruling was made upon the demurrer until the cause ■ was finally determined. The court did not make a finding of facts, but found generally for the defendant. We are therefore required to determine whether the judgment of the court below can be sustained upon the evidence, applying to it the same rule which is applicable to the verdict of a jury, and which we need not here repeat. We need not discuss the assignment of error as to the alleged erroneous admission of evidence, because we think the cause must be determined upon other grounds.

It will be seen, by an examination of the above written agreement, that it was not stipulated that $100 attorney’s fee, and no more, should be taxed by the court. Indeed, it may be said that the agreement contemplated that a greater amount should be taxed. The evidence shows, beyond question, that Crum desired that from $600 to $1,000 should be taxed. The action to foreclose the mortgage had been commenced before the agreement was made. It does not appear that Crum had any defense thereto. On the contrary the action was commenced at his instance. Finch & Lucas were the attorneys of record, and were legally entitled to reasonable attorney’s fees for their services, and if the contract had provided that no more than $100 should be taxed the court would have refused to tax more, because of the stipulation with the defendant as to the fees, and that would have been an end of the question.

But this was not the contract. Crum made no objection to the taxing of $621, but was in fact a party to it. He, or his assignees, who have no greater rights under the contract than he would have if this action were in his name, occupy this position: lie procured a judgment to be rendered against him for $521 more than was due, and without seeking to set the judgment aside, to that extent, he is in this action endeavoring to recover it back upon the ground that the defendant bought the property at sheriff’s sale for an amount sufficient to include the excess, and upon the alleged ground that the defendant, by agreement, took judgment for more than was due, and promised that he should have the excess of attorney’s fees over $100. Now we think the court below, if it founded its judgment upon that ground, was justified from the evidence in finding that this contract was procured by fraudulent representations. S. M. Finch, one of the attorneys, testified that Crum “ said he wanted a good big fee assessed there, but didn’t want me to charge him more than $100. I told him T ' could not do it for that, but finally I told him that I would have'$100 assessed and that would be all I would charge him. In the mean time he had a conversation with Robert Lucas, and Robert came in and said that Mr. Crum was a neighbor of theirs, and I finally consented that we might do it for $100. lie, however, wanted a fee of $600 or $1,000 assessed, and I refused to do that. Well, he said, the bank would hear him out in that, and make an arrangement so that the3r would pay that money hack. I told him that was something I could not make an agreement with him about; that I could not bind the bank by such an agreement; that if they made it I was satisfied, bnt didn’t want to know anything about it, and didn’t want to have, and wouldn’t have, anything to do with it. He went out and came back in about an hour, and said he bad arranged the matter with the bank; that I was to have a fee of several hundred dollars assessed, and the hank was to pa3r him any surplus over the amount that I charged him; that “ they were to go and sell the land and make their money out of it first, and if -there is anything over they have agreed to pa3r it to me, including anything in the attorney’s fees more than you charge.” I said: “Nowyou understand you are not to expect anything from the bank until they get all tlieir mone3r out of tins thing, in money.” He said: “ Yes, that was the understanding.” I told him that there might be a sale of laud or something of that kind, that might put them in bad shape.”

There is a conflict in the evidence as to whether the officers of the bank knew of any such arrangement, and the court may have fairly.found that no such arrangement was ever made, and that the bank knew nothing of the claim now made, until long after the sheriff’s sale. 'Crum had notice that Pinch & Lucas had no authority to take a judgment for more than was actually due, and thus, embarrass the bank, by compelling it to buy the real estate for more than was due, pay Crum the excess, and await the sale of the property for reimbursement.

In conclusion we may say that we are not prepared to sanction contracts of this character. Its purpose is evident from the fact that a judgment creditor of Crum intervened in this action, claiming that he was entitled to any surplus after satisfaction of the defendant’s mortgage, by virtue of a judgment lien upon the property for a large amount, and which judgment was recovered before the contract was 'made.

Aeeirmed.