Blodgett v. Koenig , 314 Mo. 262 ( 1926 )

I do not agree with the reasoning and conclusion of the majority opinion.

The plaintiff, an attorney at law, sued the defendant on a contract for the balance, $14,000, due the former for legal services. Tried to a jury there was a verdict and judgment for the plaintiff in the sum of $7,000 and interest. From this judgment the defendant appeals.

The Pleadings: The petition alleges, in substance, that defendant was indicted by the Federal grand jury on October 11, 1918; that plaintiff was employed by defendant in connection with the law firm of Frumberg Russell to defend him and received a retainer of $1,000, and that on October 28, 1918, the defendant undertook and agreed to pay plaintiff a fee of $15,000 for his services in said cause in the event of his acquittal; that plaintiff accepted said employment and took up the defense of the defendant in connection with said other attorneys and prepared for the trial, which began on November 8th and closed on November 12th; that he fully performed his agreement and undertaking and that through the efforts of himself and his associate attorneys the defendant was acquitted; that plaintiff demanded payment of his fee and that the same has been refused. The answer is a general denial.

The Facts: The Federal grand jury at the city of St. Louis, in January, 1918, returned an indictment against the defendant charging him with violations of an act of Congress, known as the Espionage Act, punishable upon conviction by a fine not exceeding $10,000, or by imprisonment for a term not exceeding twenty years, or by both such fine and imprisonment. The defendant retained A.M. Frumberg, an attorney at law, to defend him. At the defendant's suggestion Frumberg retained the plaintiff as counsel for the defendant, because of his former experience as United States District Attorney, paying him a retainer of $1,000 and agreeing that the defendant would compensate him liberally in the event of the defendant's acquittal. Blodgett from that time took the lead in the defense. A demurrer to a second indictment, the first having been held invalid, was sustained. A third indictment, containing ten counts, was returned on October 11, 1918.

The first time Blodgett met the defendant was at Frumberg's office October 20, 1918. Koenig there told Blodgett he had agreed to pay Frumberg $25,000 in the event of his acquittal and that he wanted plaintiff to come into the case. He said money was no object to him; that he was worth a million dollars, and would kill himself if he was convicted. They discussed the case and Koenig said he would take up the matter of plaintiff's fee in a few days. On October 28, Koenig agreed to pay plaintiff $15,000, if acquitted. This proposition was accepted by plaintiff. Blodgett told the defendant that Frumberg had paid him $1,000 as a retainer. Koenig said that was all right; that he had instructed Frumberg to pay him that sum as a retainer. The trial lasted four days, and at the conclusion of the case for the prosecution the court sustained a demurrer to the evidence and directed the jury to return a verdict of not guilty, and the defendant was discharged.

The evidence for the plaintiff is that from the time he secured the retainer he devoted one hundred days to the preparation for and the trial of the case, and that $15,000 was a reasonable fee. Nine prominent attorneys testified that a reasonable fee for plaintiff's services would be from $15,000 to $20,000. For the defense one attorney testified that $5,000 would be a reasonable fee; and another that $8,000 was a fair compensation for plaintiff's services.

The defendant testified that he employed Frumberg and paid him $7,500 for defending him against the charges in the indictment; that Frumberg employed Blodgett on his own suggestion and agreed to pay him out of his own pocket; that he, the defendant, did not employ plaintiff or agree to pay him a dollar and that plaintiff's testimony in that respect was not true.

The following instruction was given for the plaintiff:

"1. If the jury find from the evidence that on or about October 28, 1918, the defendant was under indictment in the United States Court for the Eastern Division of the Eastern District of Missouri, charged by the United States Government with certain crimes against the laws of the United States, and that defendant Koenig employed plaintiff as a lawyer to assist in his defense against said criminal charges, and that defendant did freely and voluntarily, and without any fraud or unfairness on the part of plaintiff having been practiced upon him, knowingly and fairly agree with plaintiff that he would pay plaintiff fifteen thousand dollars for his services as an attorney in assisting in defendant's defense upon the trial of such criminal charges if the trial thereof should result in defendant's discharge and acquittal, and that plaintiff did then and there accept such employment, and did assist in the trial of defendant upon said criminal charges, and did in all things perform all necessary acts on plaintiff's part, as one of the attorneys of defendant, in defending defendant against said criminal charges, and that at the trial thereof defendant was acquitted and discharged from said criminal charges, then your verdict should be for plaintiff in the sum of fourteen thousand dollars, with six per cent interest thereon per annum from the date of the discharge and acquittal of defendant, which was November 12, 1918."

The following instructions were given for the defendant:

"2. The court instructs the jury that if you find and believe from the evidence that the defendant Koenig did not promise or agree to pay to the plaintiff the sum of fifteen thousand dollars, as attorney's fees, then your verdict must be for the defendant.

"3. The court instructs the jury that if you find and believe from the evidence that the relation of attorney and client existed between the plaintiff and defendant at the time of the execution of the contract, if any, sued on, then you are advised that the burden of proof is on the plaintiff to show by the greater weight or preponderance of the evidence that the contract, if any, was fair and just, and that the plaintiff took no unfair advantage of the defendant, and that he did not contract for a greater compensation than his services were reasonably worth with reference to the character of the controversy, the skill and labor required, the responsibility imposed, the standing and ability of the attorney, together with the results attained, and defendant's ability to pay.

"4. The court instructs the jury that if the relationship of attorney and client had already been existing or established at the time that the contract, if any, in question was made, that then and in that event before you can find in favor of the plaintiff and against the defendant in this case you must find and believe from the evidence, first, that the contract, if any, was fair and equitable and that the defendant acted freely and understandingly with reference thereto, and secondly, that the amount agreed to be paid is the reasonable value of the services rendered.

"5. The jury are instructed that the opinions of the parties who testified as experts are merely advisory and not binding upon the jury, and the jury should accord to them such weight as they believe, from all the facts and circumstances in evidence, the same are entitled to receive.

"6. The court instructs the jury that the charges preferred against the defendant Koenig in the indictment read in evidence are no proof of the truth thereof, and that the defendant in this case, against whom the indictment was found, has been acquitted of the crime charged therein."

I. When the verdict was returned the defendant filed a motion for judgment non obstante. Counsel for the defendant contend that the fiduciary relation of attorney and clientMotion Non existing at the time the alleged contract between theObstante. plaintiff and the defendant was entered into places the burden on the plaintiff to affirmatively establish that the contract was fair, equitable and just and that the fee agreed to be paid was reasonable and not excessive; that unless such facts were found to exist, there could be no recovery on the contract, and that the verdict of the jury for $7,000 and interest conclusively establishes that $15,000 was not a reasonable fee and is equivalent to a finding that the alleged contract was not binding or obligatory on the defendant; hence the court erred in overruling defendant's motion for judgment non obstanteveredicto.

The difficulty with this contention is that this character of motion is available only to the plaintiff and not the defendant; the remedy for the defendant under like circumstances being a motion in arrest of judgment. "Such a motion can only be sustained when it appears from the record that the allegations in the answer constitute no defense to the action and even then such a judgment can only be rendered in a clear case on the application of plaintiff made after verdict and before entryof judgment on the verdict." [Hurt v. Ford, 142 Mo. 283, 296, 44 S.W. 228. See King v. Grocer Co., 188 Mo. App. 235, 238, 175 S.W. 77; 3 Bouvier's Law Dict. (Rawles Third Rev.) 2355; 1 Freeman on Judgments (5 Ed.) 810, and 1 Black on Judgments (2 Ed.) 816.]

II. It is also contended that where, as here, the plaintiff declares upon a special or express contract, he cannot recover as on a quantum meruit; hence the court erred inAction on Express overruling the motion in arrest and enteringContract: Quantum judgment on the verdict.Meruit.

"The law has been definitely written in this State that in an action on an express contract a recovery cannot be had as on aquantum meruit. [Shoemaker v. Johnson, 200 Mo. App. 209 and cases cited.]" [Gillham v. Metropolitan Street Railway Co.,282 Mo. 118, 131.]

The petition clearly and unmistakably declares upon an express contract; the case was tried and submitted by both parties in their instructions on that theory. Plaintiff's instruction follows the law as declared by this court in Morton v. Forsee,249 Mo. 409, 443, and concurred in by LAMM, WOODSON, BOND and BROWN, JJ., where it was said: "But after a fiduciary relation between attorney and client has begun, agreements between them respecting the former's fee for services rendered, and to be rendered, will be zealously scrutinized and must be supported by clear proof on the part of the attorney that the amount agreed upon is fair and reasonable" (citing cases). Plaintiff's evidence tended to prove that, after his retainer and employment by the defendant as his attorney and while the fiduciary relation existed, the defendant agreed to pay him $15,000 for his services in the event of the defendant's acquittal. Plaintiff followed this with proof that the fee so agreed upon was reasonable and fair, thus undertaking to support the contract as required in the Morton case. Plaintiff's instruction requires, that if the jury found the facts as therein predicated their verdict should be for the plaintiff for the sum agreed upon, less the retainer paid, with interest. Defendant's Instructions 2, 3 and 4, when read together, are the converse of plaintiff's instruction. Neither of the instructions authorized or contemplated a verdict on aquantum meruit. That this was the theory of court and counsel expressly appears in a ruling of the court during the trial. Counsel for defendant objected to a question propounded to the defendant on cross-examination. The court in sustaining the objections said: "The contract is for $15,000; alleged to be; the question here is, whether it was equitable or not." There is no merit in the contention of respondent's counsel that the petition when properly construed, counts upon a quantum meruit, and that the case was tried and submitted upon that theory.

III. Respondent's counsel, however, insist that defendant's motion for judgment non obstante veredicto was an acceptance of and an election to stand upon the verdict, and that it was inconsistent with the motion for new trial which was filed thereafter. They cite Nixon v. Downey, 49 Iowa, l.c. 169, in support of this view. This is an erroneous citation. Counsel, however, are in error in saying that appellant accepted the verdict; the contention of appellant's counsel is that the jury found that the fee claimed was excessive; hence the alleged contract was not obligatory on the defendant. In Dezell v. Fidelity Casualty Co., 176 Mo. 255, 75 S.W. 1102, an action on a policy of insurance, there was a verdict for the defendant. Plaintiff's motions for a new trial, in arrest of judgment and for judgment, notwithstanding the verdict, were overruled and plaintiff appealed (p. 285). This court reversed and remanded the judgment with directions to sustain the plaintiff's motion nonobstante, and to enter a judgment for the plaintiff for the amount specified in the policy (p. 310). There is no merit in this contention; nor in the others assigned.

I am of the opinion that the court erred in overruling the motions for new trial and in arrest, and that the judgment should be reversed and the cause remanded.