International & Great Northern Railway Co. v. Clark & Dyer , 81 Tex. 48 ( 1891 )

This is a suit filed by Clark Dyer, a firm of lawyers, against the International Great Northern Railway Company and the Missouri Pacific Railway Company, on May 9, 1888, for $5000 due them as a fee for attending to the defense of a suit by the Texas Express Company v. International Great Northern Railway Company in the United States court at Waco. The defense was a general denial.

Clark Dyer were employed by International Great Northern Railway Company to represent them as their attorneys in a suit in equity in the United States Circuit Court at Waco, brought against it by the Texas Express Company to compel the former to carry for it its express matter and messengers. A preliminary injunction was granted requiring the railway company to so transport for the express company at reasonable rates. About the 29th of March, 1881, Clark Dyer were employed as before stated. In June, 1881, the Missouri Pacific Railway Company leased and took possession of the International Great Northern Railway and operated the same during the pendency of the litigation, observing the injunction, and doing the carrying for the express company. In 1887 the suit was settled by agreement of the parties, and on May 16, 1887, Clark Dyer were instructed to have the case dismissed at cost of the complainant and disposed of according to the agreement, which was done, after some delay, in April, 1888. There was no contract made as to the amount of the fee except that a retainer of $100 was to be paid at once, it being impossible at the time of employment to correctly determine what it ought to be. The amount was never agreed on, and this suit was brought on a quantum meruit. The case was tried and resulted in a verdict for plaintiffs for $5000 against both of the defendants, who have appealed.

First assigned error: The court erred in refusing special charge No. 1 asked by defendant, which is as follows: "The jury are charged that no greater fee would be reasonable against a wealthy man or corporation than a poor man for the same services, and you will not allow the wealth of the parties engaged in the litigation to influence your finding as to what would be a reasonable fee for the services, unless the same increased or diminished the burden of the services of the attorney."

There was no evidence of the wealth of the parties and no issue made upon it. Such a charge as the one asked was held to be proper in the case of Hamman v. Willis Bro., 62 Tex. 507 [62 Tex. 507], but the evidence in that case as to the wealth of the parties rendered the charge applicable. Looking to the original record of that case on file in this court (file number 5232) we see that the wealth of the litigating parties and their great influence was made an issue by the testimony; that there was a plea of non est factum to the note filed in the original suit, and that there was unusual interest in the trial and result of' the case on the part of the litigants. The issues authorized the charge in that case, but in this it was not error to refuse it.

Second assigned error: The court erred in refusing special charge No. 2 asked by defendant, as follows: "In determining the amount due by defendant to plaintiffs the jury are not bound by the opinion of the witnesses as to the amount due, unless, in view of all the facts and circumstances of the litigation, the jury think such opinions are correct."

Another charge was requested by appellant somewhat similar to the foregoing (which was refused by the court), as follows: "The jury are charged that in determining the value of the plaintiffs' services the jury are not bound by the estimate placed on said services by the expert witnesses; that testimony may be considered by the jury; but if, in the judgment of the jury, the value fixed by said witnesses is not just, they may find the amount they (the jury) think just and reasonable."

Alex. White, an attorney who was familiar with all the matters in litigation in the suit of the express company against the railway, and who represented the express company from first to last in the suit and knew what services were rendered by plaintiffs, testified that $5000 to to $7500 would be a reasonable fee. John T. Flint, appointed master in chancery in the case to take an account between the railway and the express company and ascertain the amount due the railway for carrying freights for complainant in the original suit pending the injunction, testified that $5000 would be a reasonable and fair fee. Baker, Botts Baker, who were the general attorneys of the defendants and who retained plaintiffs to defend the suit, when applied to by Clark Dyer to have the fee fixed and paid at $5000, recommended the amount to their principals as a proper fee. A full history of the case and the services rendered were before the jury. It was their province from all the evidence before them to determine the value of the services; it would not have been proper for the court to comment on the evidence of experts as requested. The charge given by the court was fair and correct. Upon this subject it was in the following language: "In ascertaining the reasonable value of the services of plaintiffs you will consider the nature of the litigation, the amount involved and the interests at stake, the capacity and fitness of plaintiffs for the required work, the services and labor rendered by plaintiffs, the length of time occupied by them, and the benefit, if any, derived by defendants from the litigation. And you are further instructed to look to all the evidence in the case and to exercise your sound discretion and judgment thereon, and allow plaintiffs such reasonable amount as you may believe they are justly entitled to, not to exceed the amount claimed in their petition." This charge did not confine the jury to the opinions of experts in considering the amount to be awarded, but left it to the sound discretion of the jury under all the evidence, unimpressed by any opinion of the court.

Fourth error assigned: The court erred in the second clause of the charge in submitting to the jury the question as to whether the Missouri Pacific Railway Company ratified the employment of plaintiffs, because there was no evidence of any ratification.

Briefly and without going into the details of all the elements constituting the fee and the relation of the parties to the suit, it might be well in this connection to make an additional statement of some of the important facts connected with it.

Clark Dyer were not employed in the case until the preliminary injunction had been granted; they then took charge of the defense and filed an answer. The case was continued under various agreements, and finally it was agreed by the parties or their counsel that it should abide the result of a suit of a similar character pending in the United States Circuit Court at St. Louis, Mo. That case in St. Louis was tried and decided against the railway and appealed to the Supreme Court of the United States, where, in October, 1885, there was a reversal of the decision of the Circuit Court; the Supreme Court holding that the railway company was not bound to carry for the express company or to furnish them car room for their business, and the bill was dismissed; but the cause was ordered to remain on the docket until an account could be taken between the railway and the express company for car room furnished by the railway pending the injunction. Clark Dyer then filed a plea to suit the new aspect of the case, and an itemized account of charges against the express company during the time the railway had, in obedience to the writ of injunction, done the carrying for the express company, the items of charges in the account aggregating more than $1,000,000, the credits $300,000, leaving a balance due the railway of $700,000. Exceptions were filed to the claim, which, upon hearing by the master in chancery appointed for the purpose of taking the account, were overruled. Time was given to the express company to file a counter-claim. It had been prepared by complainants (the express company's counsel), but before it was filed the parties, without consulting Clark Dyer and without their knowledge or consent, settled or compromised the matters in controversy. A memorandum or instruction for final dismissal showed that "the accounts between the International Great Northern Railway Company and the express company were to be considered square." The attorneys Clark Dyer were not informed of the terms of settlement, and have never been informed except by the expression in the memorandum of settlement above quoted. The same memorandum stated that the Iron Mountain road (whose case had been carried to the United States Supreme Court on the question of the express company's injunction rights) was to be paid $36,000. Clark Dyer were notified of the compromise in May, 1887, but they were not able to learn the terms of the agreement as to costs, etc., for some time, and the case was not finally disposed of by dismissal until April, 1888. They frequently consulted with Baker, Botts Baker, general attorneys for the Missouri Pacific Railway Company's leased and operated lines, about the case, by whom as such attorneys the fee of $5000 was indorsed as reasonable and recommended for early adjustment.

We think it can not be doubted that the Missouri Pacific Railway Company accepted the services of Clark Dyer in the matter of their employment. The services rendered after June 1, 1881, up to the conclusion of the controversy, during which time the Missouri Pacific Railway Company controlled and operated the road under lease, were for the benefit of that company. It was necessarily to that company that a greater part of the items of the account claimed before the master in chancery was due. Our conception of the matter is that the Missouri Pacific Railway Company took the place of the International Great Northern Railway Company in the litigation with the express company and assumed its responsibilities, but whether this is absolutely correct or not we are not required to decide. There was certainly sufficient evidence before the court to justify the charge submitting to the jury the question of ratification of the employment of Clark Dyer by that company, and there was ample evidence to support the finding that there was such ratification.

We are not prepared to approve the last assignment of error, that the verdict is excessive. We have given a general history of the litigation without mention of all the particulars incident to it constituting elements of the fee, and deem it unnecessary to further review the evidence. We think it was sufficient to support the verdict. The question was fairly submitted to the jury, and we see no reason for holding that their conclusion as to amount should be set aside.

We think the judgment of the court below should be affirmed.

Affirmed.

Adopted May 12, 1891.