White v. Burch , 1930 Tex. App. LEXIS 969 ( 1930 )

This is the second appeal in the case of Mrs. L. B. White v. M. W. Burch. The original case was tried in the district court of Wise county on August 9, 1928. In that case plaintiff attacked a contract of employment entered into by Mrs. White and M. W. Burch, on the ground of fraud alleged to have been practiced on Mrs. White by Burch. By the terms of that contract Mrs. White employed Burch to represent her and her son, J. F. White, "against any and all charges that may be brought by the State of Texas against either or both of us concerning the death of J. M. White in Wise County, Texas, which death occurred on or about the 12th day of October, A.D. 1927, and the said Burch is further employed to represent the said Mrs. L. B. White in the collection of all her interest in a certain policy owned and held by her as beneficiary in the (original) Sextet Local Mutual Aid Association of Decatur, Texas, and all of the interest owned and held by her in a certain policy in Group One of the Sextet Local Mutual Aid Association of Wise County, Texas, said policies having been, issued to J. M. White, deceased. And the said Burch agrees on his part to represent the said Mrs. L. B. White and J. F. White against any and all charges through all the courts of Texas wherein they may be charged or either of them may be charged with the homicide of J. M. White, deceased, and the said Burch further agrees to collect and receive for the said Mrs. L. B. White all sums of money that she may be entitled to under and by virtue of her interest in said policies, and the said Burch further agrees to collect all sums of money that may be due and owing to the said Mrs. L. B. White by virtue of a policy in the sum of $2,000.00 issued out of the Modern Woodmen of America."

It was agreed in said contract that as compensation for the legal services rendered and to be rendered by Burch for Mrs. White and her son, not only in the defense of any criminal charges that might be brought against either of them, but in the collection of the three policies above mentioned, Mrs. White was to pay Burch one-half of the proceeds of the policies so collected after the deduction of certain bills owing by Mrs. White to two banks, the First National Bank of Decatur, $500; the F. M. State Bank of Krum, $40; C. L. Christian, funeral expenses, $245; Kennerly Hardware Company of Gainsville, $50 — making a total of $835, which was to be deducted from the amount collected from these three policies, and the remainder was to be divided equally between Mrs. White and Burch. See 19 S.W.2d 404. The defendant in his cross-action won in the court below, and on appeal to this court the judgment of the trial court was affirmed. An application for writ of error was made to the Supreme Court, and the application was denied.

We held in that case that an attorney unjustly discharged may recover the full amount of the fee agreed upon in the contract.

In the instant suit, plaintiff pleaded the institution of the former suit, the trial in the district court, the appeal to this court, and the affirmance of the judgment of the trial court, and the application to the Supreme Court for writ of error, and the refusal of said application, but further pleaded that the only matter determined by the trial court and the two appellate courts was that the contract of employment between Mrs. White and Burch was not void for fraud, and left undetermined the amount, if any, which Burch would be entitled to under the facts of the case.

This suit was filed for the purpose of having the district court construe the contract made by Mrs. White and Burch. Plaintiff alleged that neither Mrs. White nor her son had ever been indicted and four grand juries had met and adjourned since the date of the contract, and that defendant had done nothing towards complying with the terms of the contract, and towards earning the fee therein stipulated: that therefore he was not entitled to the full compensation recited, but only, in any event, entitled to a reasonable compensation for the services actually rendered. Plaintiff further alleged that, after the rendition of the judgment in the trial court, and while plaintiff's appeal therefrom was pending in the Court of Civil Appeals, plaintiff and defendant Burch, by instrument in writing, on, to wit, the 20th day of December, 1928, authorized and empowered defendant John A. Simmons to collect the proceeds of said three insurance policies, and, after collecting the same, to hold the proceeds thereof in trust pending said appeal; that on final adjudication thereof said Simmons was by the terms of said instrument directed to divide the money so collected in accordance with the final judgment in the prior case; that pursuant thereto said Simmons had collected and now holds in trust the proceeds of said policies, save and except several items which, by agreement of the parties thereto, said Simmons has paid out; that a copy of said instrument of date December 20, 1928, is hereto attached and marked Exhibit C. Plaintiff tendered and offered "to pay to defendant Burch anything or amount which may be justly due him for legal service rendered by him in her or her son's behalf in virtue of said contract," and willingly submitted herself to the equity of the court.

Plaintiff's prayer was that "citation be issued to defendants M. W. Burch and J. A. Simmons requiring them to appear and answer herein; that upon the trial of this cause that the court construe said contract; that same be construed by the court to mean and intend that the assignment thereby by plaintiff to defendant Burch of a one half interest in said three insurance policies was contemplated by the parties to be, and intended as, an attorney's fee to be paid to defendant Burch for the defense of plaintiff and her son, J. F. White, under such criminal charges as might be brought against them for causing the death of J. M. White; that if the court find, in accordance with the foregoing allegations, that no criminal charges have been brought against plaintiff or her son, that no trial has been had, that no legal defense has been made or conducted of plaintiff or her son, that the defendant has not performed the legal services contracted to be performed, that the conditions under which such services could or can be performed have not come about, that the consideration for said assignment of said interest has wholly failed, then upon so finding that the court declare said contract terminated and discharged; that defendant Simmons be ordered and directed by the court to pay over to plaintiff the proceeds of said three insurance policies as so collected and now held by him; for costs of suit; and for all such other and further relief, general or special, at law or equity, as, upon the trial hereof, plaintiff may show herself to be justly entitled."

The defendants in a joint answer pleaded a general demurrer and special exceptions, excepted to plaintiff's petition because it "wholly fails to allege or show in what particular a construction of said contract by the court becomes necessary, for plaintiff wholly fails to allege or show in what way or manner an ambiguity arises by virtue of the language of said contract, or in what way the contract differs from the original contract, to evidence which the written instrument was executed."

Defendant further pleaded that "the petition fails to allege any legal reason or excuse for the failure to present the contention in the original suit as referred to as raised or attempted to be raised in the petition as filed herein, and therefore a legal estoppel arises for the law abhors a multiplicity of suits and only gives each party his or her day in court."

Defendant further pleaded that plaintiff adopted the written instrument as setting forth the original contract, and, without setting up any allegations as to mistake, accident, or fraud, all parties are bound thereby, and no remedy exists for a construction of such contract but only to enforce same.

Defendant further pleaded that Mrs. White was one and the same person as in the former suit, and that defendant Burch was the defendant in the former suit, and that the matters sought to be pleaded in this suit were res adjudicata; all the matters which plaintiff relies on in this suit were involved in the former suit.

Opinion. The good of society and the preservation of rights and good order require that, when once the rights of parties have been determined by the ultimate tribunal provided by law for their adjudication, the same should pass from the field of strife forever; any other rule would fill the court with causes which have once been determined, and render all rights of property uncertain and the most solemn judgments a mockery. Crane v. Blum, 50 Tex. 325.

It is no answer to a plea of a former judgment that some of the parties in the second suit were not parties to the first, if the first was decided on its merits, and not on exception to the joinder of parties. Girardin v. Dean, 49 Tex. 243; Frankel v. Heidenheimer Bros., 1 White W. Civ.Cas.App. § 807. It is also well recognized that not only is a former judgment decisive of all questions that were raised in the former suit, but of all questions that were involved in the former suit and could and should have been raised.

We have before us the transcript and record of the former suit, and in the defendant's answer and cross-action in that transcript the defendant pleaded:

"In the event the court should hold, and in that event only, that the said Mrs. White is entitled to a cancellation of her said written agreement with said Burch, then said Burch would with respect show to the court that he is entitled to a reasonable fee for the services that he has already performed; that immediately after said employment said Burch entered upon a careful study of the case of both Mrs. White and her son, J. F. White in order to be prepared for trial in the event of their said indictment and devoted much time and study to these particular cases; that he interrogated many persons and every person purporting to know any fact concerning said cause; that he made a careful study of the facts surrounding the death of the said J. M. White, and made written statements and obtained written statements concerning the exact circumstances of his death; that he studied medical authorities to determine the symptoms of strychnine poisoning and in fact devoted a great amount of time, labor and study from the date of his employment to the date that Cates and Patterson notified him of their intended suit, to a conscientious and careful study of said causes and in preparation for trial and in the proper protection of the interests of his clients; that the greatest labor is in the proper preparation for trial rather than in the actual trial after the indictment. That in this way defendant rendered great and valuable service to his said clients at a great labor and loss of time to himself and that a reasonable fee for the services rendered would be in the sum of ($2,160.00) Twenty One Hundred Sixty Dollars.

"Wherefore, plaintiff prays the court that only in the event that his contract with the said Mrs. L. B. White be canceled that he have pay for his labor, loss of time and services rendered in the sum of $2160.00 costs of suit and general and special relief."

Plaintiff in the first trial submitted the issue and charge that, if the attorney is discharged by the client without cause, "then you are charged that the attorney is entitled to a reasonable compensation for any services performed by the attorney, of which the client received the benefit, up to the time of such discharge." The court would not give this charge, but evidently the plaintiff considered that it was supported by the pleadings and called for by the evidence.

The case made on former trial is found in 19 S.W.2d 404, 407. In the discussion of the case this court said:

"(3) If to the foregoing questions you have answered that the plaintiff discharged the defendant as her attorney without cause, then you will state what, in your opinion, under the evidence submitted to you, would be a reasonable amount as compensation for any services he may have rendered in her behalf."

This court held that there was no error in refusing to give the requested issue, and that the appellant had authority to discharge her attorney either with or without cause. We further cited a number of cases, including Myers v. Crockett, 14 Tex. 257, by the Supreme Court, and Crye v. O'Neal Allday, 135 S.W. 253, by the Texarkana Court of Civil Appeals, and Baldwin v. Bennett, 4 Cal. 392, to the effect that, where an attorney has been wrongfully discharged by his client, such fact relieves the attorney of the duty of further performance of his contract, and that he may recover of the client the sum agreed upon to be paid for the entire service covered by the contract.

Moreover, we believe by the terms of the agreement of December 20, 1928, signed by Mrs. White and her attorneys and by M. W. Burch, that it was agreed that John A. Simmons was appointed their lawful attorney in fact to collect the three policies of insurance, in the total amount of $5,000, and to receipt for and release the same, and the parties signed the same further agreement: "We further empower and direct said attorney to take said funds when collected and deposit same in the First National Bank of Decatur, in the name of John A. Simmons, trustee; and to hold and keep the same on deposit in said name in said bank until a certain lawsuit now pending by and between Mrs. L. B. White and M. W. Burch in the Court of Civil Appeals of the Second Judicial District of Texas, at Fort Worth, involving the cancellation of a contract by and between the said Mrs. L. B. White and the said M. W. Burch, shall have been prosecuted to final judgment or settlement in said Court of Civil Appeals or the Supreme Court of Texas. After the said suit shall have been finally adjudicated, or in the event same shall be settled by mutual agreement, the said John A. Simmons shall partition and divide the moneys so collected between the said Mrs. White and the said Burch in accordance with said final judgment or in accordance with said agreement, as the occasion may be."

We think this contract and agreement binds Mrs. White, and, in case the former suit shall be finally determined in favor of Burch, authorizes her attorney in fact, Mr. John A. Simmons, to divide the money so collected in accordance with the terms of the contract theretofore entered into between Mrs. White and Burch.

The trial court concluded that there was no cause of action set up in plaintiff's petition, and that the contract entered into by Mrs. White and Burch was a valid and subsisting agreement, and, plaintiff declining to amend, the general demurrer and the plea of legal estoppel were sustained, and dismissed the suit and adjudged that the defendants M. W. Burch and John A. Simmons were entitled to go hence without day and recover of Mrs. White all costs in their behalf expended.

We affirm this judgment.

On Motion for Leave to File Second Motion for Rehearing.