Meacham v. Ballard Co. Inc.

1 Reported in 240 N.W. 540. This action comes here again (see 180 Minn. 30,230 N.W. 113) on no issue between the parties. It was settled by defendants for $30,000 paid to George S. Grimes, one of plaintiff's attorneys. Thereafter A. Enkema, claiming to be one of counsel for plaintiff, asserted a lien. The resulting issues arise solely between Enkema and Grimes. The decision below sustained the contentions of Mr. Enkema. The appeal from the resulting judgment is in the names of both plaintiff and defendants but is prosecuted on behalf of Mr. Grimes. Other attorneys may be interested with him, but it will serve convenience to discuss the facts as though he were the only party adversary to Mr. Enkema. The agreed fee to be paid by plaintiff to cover the services of all her attorneys was $10,000. That money is in the hands of Mr. Grimes. It was found below that Mr. Enkema was entitled to one-third of it, with interest, less $666.66 "being one-third of the value of the services" of Mr. Clark R. Fletcher, another attorney who for a time had been associated as counsel for plaintiff. *Page 609 Plaintiff sued as a stockholder in defendant Ballard Company, Inc. Her purpose was to rescind the purchase of stock in that company and recover what she had paid for it. Originally she employed Enkema alone. He first retained to assist him the law firm of Allen Fletcher, of which Mr. Clark R. Fletcher is a member. What they did is now immaterial, but by letter under date of December 3, 1926, Messrs. Allen Fletcher assured Mr. Enkema that he would "receive one-half" of any fee received by them from plaintiff. Not much progress seems to have been made for plaintiff before December 6, 1927. On that day plaintiff wrote a letter to Enkema and Allen Fletcher in terms revoking their agency for her and demanding the return of her papers. On the same day, there is evidence, denied by Mr. Grimes, that the latter prepared, in letter form, an agreement whereby plaintiff employed him, Grimes, to "take" her suit against defendants and agreed to pay him as his fee one-third of the amount collected. Both the letter and agreement of December 6, according to the evidence for Enkema, were the result of prearrangement between him and Grimes that Grimes should come in and take active charge of the case, but that Enkema was not to be actually discharged but should remain as associate counsel and be entitled to one-third of the total fee when and if collected. Mr. Grimes denies any such agreement, but the findings are against him. That Mr. Enkema first secured plaintiff's retainer is not denied. He claims to have done much valuable work on plaintiff's case both before and after the retainer of Mr. Grimes. 1. Citing Brown v. City of New York, 9 Hun, 587; Weinstein v. Seidmann, 173 App. Div. 219, 159 N.Y. S. 371; Lebaudy v. Carnegie Tr. Co. 178 App. Div. 614, 165 N.Y. S. 566, affirmed,222 N.Y. 525, 118 N.E. 1065; Kennedy v. Carrick, 18 Misc. 38,40 N.Y. S. 1127; Goodwin F. C. Co. v. Eastman K. Co. (D.C.) 216 F. 831, appellants argue that inasmuch as Enkema was not an attorney of record he is not entitled to a charging lien in this case under our statute (G. S. 1923 [1 Mason, 1927] § 5695). That question we are not at liberty to decide, for so far as we can gather from the record *Page 610 the point was not made below. It is not suggested by the pleadings in opposition to Enkema's claim of lien nor by objection or motion made at the beginning of the trial or at any other time. Even after the evidence was all in, there is nothing to suggest that the learned trial judge was asked to rule on it. If there is any record to the contrary which we have overlooked, appellants do not refer to it in their brief as they should. The burden is always upon appellants to show error. It is but a corollary that theirs is the burden also to show explicitly that any point upon which they rely for reversal was covered by the theory of trial and fairly presented to the court below for decision. Appellants must abide here by the theory upon which they tried the case below. D. M. N. Ry. Co. v. McCarthy, 183 Minn. 414, 236 N.W. 766. 2. These attorneys have voluntarily litigated fact issues before a court competent to decide them and must abide the result. If Mr. Enkema's contention be sustained, and it was below, he and Mr. Grimes, from December 6, 1927, on were engaged in a joint adventure. Langdon v. Kennedy, Holland, DeLacy McLaughlin, 118 Neb. 290, 224 N.W. 292,63 A.L.R. 896. It was there held that when attorneys engage in the prosecution of a case for a contingent fee they are joint adventurers occupying a "special partnership relation," and that in the absence of agreement otherwise they share equally in the fee if they are successful. Here Mr. Enkema's claim of a special agreement for one-third made the fact issue below. It was sustained against the opposing claim and evidence for Mr. Grimes. The evidence, we regret, was in irreconcilable conflict. We cannot say that the decision was against the manifest and palpable weight of it. 3. The other points made for appellants require no separate discussion. Inter alia they question the order bringing in Mr. Fletcher and his firm and valuing his services at $2,000. In that connection it is complained that there is undisputed evidence that there was a contract between Messrs. Fletcher and Grimes whereby Fletcher was to "receive one-third of the stipulated attorneys' fees." It was but good sense to order in as parties Mr. Fletcher and his *Page 611 partners in order that there might be an end of the matter. That Mr. Fletcher was entitled to share in the $10,000 fee no one denies. If as between Grimes on the one hand and Allen Fletcher on the other the latter firm was entitled to one-third of the fee, Mr. Enkema was not party to the contract that produced that result. It did not lessen his right under his agreement with Mr. Grimes, established by the decision below, to his share of the compensation. Judgment affirmed. APPEAL OF CLARK R. FLETCHER. No. 28,726. AFTER REARGUMENT. On January 29, 1932, the following opinion was filed: