Denson v. Middleton

MERRITT, J. This is an action of assumpsit by the appellee against appellant to recover a balance on account alleged to be due on attorney’s fees. The evidence shows without dispute that in the year 1911 the firm of Denson & Denson, of wMch the appellant was a member, represented one Thomas Sims in a suit against the Louisville & Nashville Railroad Company in the circuit court of Chilton county; that the appellee was a member of the local bar- of that county, and Denson & Denson associated appellee with them in the case. In August, 1912, that case was prosecuted to a judgment in favor of Sims for the sum of $15,000, and soon thereafter the suit .was settled between the parties, through the appellant, acting for and in behalf of Sims, for $8,500, and appellant immediately after the settlement delivered to the appellee through the mails a check, according to the appellant’s testimony, for $1,475, and, according to the appellee’s testimony, for $1,-400, which appellee received and cashed. Appellee’s contention is- that, when| his service was engaged by appellant firm, it was agreed that he was to have half of whatever fee was collected in the case; that he made no subsequent agreement to accept less; that the amount agreed on between Sims and appellant’s firm to be retained out of the recovery as fees was $4,000; and that the balance over the sum represented by the check delivered to him is still due and unpaid, and his testimony tends to sustain this theory. On the other hand, appellant contends that before the settlement was made appellee agreed to accept the sum of $1,500 as his part of the fee, and oú the strength of this agreement and the agreement of Sims to allow the attorneys to retain $4*000- for the fees in gross the case was settled for $8,500; that the-sum of $25 was retained by appellants out of appellee’s share to cover one-half of certain expenses incident to the prosecution of the instant ease which appellee had agreed to pay, and appellant’s testimony is to this effect. The only evidence offered on the trial was the testimony of the respective parties, and there is nothing in the record that tends in the least to reflect on or discredit either. However, the undisputed evidence establishes the further facts that the settlement' of the case was-concluded in August, 1912, and immediately thereafter the check was delivered to appellee for his part of the fee, and was received and cashed by him; that subsequent to this time the appellant’s firm and appellee’s firm were associated togethei in the prosecution of a number of cases, in the same court, and -fees were earned and collected by them amounting to from $35,000 to $40,000; that all of these fees passed through hands of appellee’s firm, and checks were given to. appellant’s firm for their portion of the fee without any suggestion on the part of appellee that the division of the fee in the Sims case was unsatisfactory, or that the check was not accepted by appellee in full settlement of his portion of the fee in that case until this suit was filed in March, *267 1917, nearly fire years after the division of the fees in the Sims case. These facts are so inconsistent with the appellee’s contention, after a careful consideration of the evidence in this record, we are constrained to hold that he had not discharged the burden of proof resting upon him to show that the appellant was indebted to him when this suit was brought, and the judgment of the circuit court will be here reversed, and the judgment rendered in favor of the appellant. Reversed and rendered. SAMFORD, J., concurs.