Reynolds v. Clark County , 162 Mo. 680 ( 1901 )

SHERWOOD, P. J.

The county court of Clark county, employed plaintiff as attorney at law, in litigation, in which the county was sued on'$20,000 of M. & M. R. R. F. B. coupons detached, as well as accrued interest from 1871 up to 1887, when the contract of employment was made. Some $50,000 was involved in the suit, which was then pending in the United States Circuit Court for the Eastern District of Missouri. Judgment went in favor of the county, and the cause was carried by appeal from such court, by L. C. Whit-ford, the plaintiff therein, to the Supreme Court of the United States, where the judgment was reversed on a technicality, and cause remanded to the circuit court for retrial. The plaintiff in the ease at bar attended to the case in the Supreme Court of 'the United States, and when the cause came back, he prepared for trial; held a consultation with the county, his client, and advised that plaintiff had no case.

« The county then paid him $250 and by the terms of Es contract he was entitled to $250 more on the ground of attending to the case in the Federal circuit court. With matters in this posture, and with plaintiff holding himself in readiness to try the cause when it should be called, the county court, without communicating or consulting with plaintiff in regard to what they were about to do, compromised and settled the business for $4,000 in full settlement of the claim.

Thus, it seems, throvjing away just that sum, as the claim sued on never could have been recovered, even in the Federal court, which, it may be parenthetically stated, is saying much for the utter worthlessness of the claim.

Being informed of what had been done behind his back, plaintiff presented his account for the remaining $250 to the county court, which refused to allow the amount, whereupon he appealed to the circuit court, and that court denied plaintiff’s right to recover on the specific and single ground that the county court had no power to employ plaintiff as an attorney in the matter aforesaid. Acting on this theory, the trial court refused to declare the law to be that plaintiff, on the evidence, was entitled to recover, and gave judgment for defendant; hence this appeal.

The court has taken just the opposite view of the law to that decided by the lower court. [Thrasher et al., v. Greene Co., 87 Mo. 419; Thrasher v. Greene Co., 105 Mo. 244.]

The county court, therefore, had the power to make the contract, which contract, when made, bound the county, and placed it on the same, plane of liability and on the same basis as to incidents and consequences flowing from such liability, as other contracting parties are placed. Among such incidents and consequences is this one: That if a party employs an attorney to bring or defend a suit, and such suit is brought or defended; such, party can not, while the suit is pending, dismiss the suit, if he is plaintiff, of compromise it, if defendant, and then refuse to pay his attorney as previously agreed upon. This view is announced by all the courts. [Kersey v. Garton, 77 Mo. 645, and cas. cit.]

In the language of one of those cases, “It would be most unjust that the defendant, by a compromise with the adverse party, should snatch from the plaintiff the fruits of his labor, and deprive him of the power of performing his contract.” [Hunt v. Test, 8 Ala. (N. S.) 713.]

This principle is also recognized in certain passages of the Rev. Stats. Coeli where it is said that, “The laborer is worthy of his hire” (Luke 10:7); and, “Thou shalt not muzzle the ox that treadeth out the corn” (1 Tim. 5:18).

Furthermore, as the act of defendant prevented performance, it will be assumed that the service would have been performed as agreed upon. [McElhinney v. Kline, 6 Mo. App. 94.]

Therefore, the judgment will be reversed and the cause remanded with directions to the circuit court to, enter judgment for the amount of plaintiff’s demand, together with six per cent interest from the date of its presentation for allowance to the county court.

All concur.