Thompson v. Stearns

This action was instituted in the Circuit Court of the city of St. Louis, on the eighth day of December, 1913, by William B. Thompson and Ford W. Thompson, attorneys, against the defendants, in which they seek to collect an attorney's fee alleged to be due them as co-partners. This is the second appearance of this case here. On the first trial there was a decree entered in favor of plaintiffs for $3153, which amount was declared a lien upon the equitable interest of defendant Stearns, and the property held by Garneau as trustee to the use of Stearns. From this judgment both parties appealed. [See Thompson v. Stearns, 197 Mo. App. 344, 195 S.W. 43.] *Page 344 On the former appeal the cause was reversed and remanded. On March 4, 1918, after the cause had been remanded, defendant Stearns filed a motion for trial by jury, on the theory that the suit was one at law. This motion was overruled. On March fourteenth following Stearns filed an amended answer, and on the same date filed a motion to take the opinion of the jury in aid of the chancellor. On October 19, 1919, the court tried the case with the aid of this jury, and submitted the issues of fact: First, whether or not plaintiffs had agreed, prior to March, 1913, to perform the services for $1000, which question was answered in the negative by the jury. Second, what was the reasonable value of the services rendered by plaintiffs? To this question the jury answered $5000. On December fifteenth following there was a trial by the court, and the finding and decree was for plaintiffs for $4000 with interest, and declaring the same an equitable lien against Stearns' interest in the property described in the petition. From this judgment defendant Stearns appeals. The evidence is not brought up in the bill of exceptions. The appeal was allowed to the Supreme Court, defendant having alleged in the motion for new trial that he was entitled to a jury trial, and to deny him such was in violation of certain provisions of the Constitution. Upon motion of plaintiffs, the cause was transferred to this court. It is urged by appellant here: (1) That the petition does not state a cause of action, because it does not allege that plaintiffs performed their part of the contract sued on; (2) that the decree is excessive. The petition is a lengthy one, and we will not set it out in detail. In substance, however, it alleges that plaintiffs were co-partners engaged in the practice of law, in the city of St. Louis, Missouri; that prior to the fifteenth of March, 1913, at the request of defendant *Page 345 Stearns, they rendered and performed for him certain legal services; that Stearns, as well as defendant Rath, is a non-resident of the State of Missouri; that such services were rendered in connection with the property and assets of the Banner Rubber Company, in which the defendants Stearns and Rath were stockholders; that on the above-named date all the property of the Banner Rubber Company was conveyed to the defendant Garneau as trustee; that on the next day after said conveyance, defendant Stearns agreed with plaintiffs, in consideration of the services rendered to that date, and to be rendered on the final distribution of his interests after the sale of the property by the trustee, to pay plaintiffs the sum of $4800 (defendant Stearns having previously paid them $200), the sum of $800 forthwith, and the further sum of $3000 on the 14th day of September, 1913 (that being the date on which the said trustee was required to sell the real estate, buildings, and machinery of the Banner Rubber Company), and the further sum of $1000 in the event the property conveyed to the trustee should sell for as much as the sum of $150,000 at the said sale. Plaintiffs state that defendant Stearns has paid them the said sum of $800. Plaintiffs further state that on the fourteenth day of September, 1913, there was due and owing them the sum of $3000 under said agreement, which Stearns refused to pay. Plaintiffs also allege that on the fourteenth day of March, 1913, the Banner Rubber Company, by a unanimous vote of its stockholders, conveyed to Garneau as trustee, certain real estate in the city of St. Louis, which is described in the petition, together with all buildings, machinery, etc., located thereon. The petition then sets out the conditions in the trust agreement, whereby it was provided that the trustee was to sell the real estate, buildings, machinery, etc., at public vendue, on the fourteenth day of September, 1913. It is unnecessary to set out other provisions in the trust agreement. It is alleged, however, that after the property was advertised *Page 346 for sale, the defendant Stearns filed a suit against the trustee asking for his removal; and, upon the trial of said cause, the restraining order was vacated and dissolved. Plaintiffs asked for an equitable lien on the property in the possession of the trustee in which defendant Stearns has an equitable interest, and alleging also that Stearns has no other property as assets in this state which is subject to attachment. The prayer of the petition asks for judgment for $4000. Defendant Stearns, who is the only defendant appealing, urges that his original demurrer should have been sustained. However, he did not stand upon his demurrer but answered over, and, under such circumstances, we must treat the petition, when its sufficiency is challenged, as if no demurrer had been filed; and it will be regarded sufficient after judgment, if, after allowing all reasonable implications and intendments in its favor, there appears to be a sufficient statement to apprise the defendant with reasonable certainty of the character of the action and the issues he must meet. [Heckfuss v. American Packing Co., Mo. App., 224 S.W. 99; Wyler v. Ratican, 150 Mo. App. 474, 131 S.W. 155; Spillane v. Mo. Pac. Ry. Co., 111 Mo. 555, l.c. 562, 20 S.W. 293.] Therefore, the only objections to the petition which may be considered are that it states no cause of action, or, that the court had no jurisdiction of the subject matter. A party suing for breach of contract must allege and prove performance of all conditions precedent, or he must allege and prove excuse for their non-performance. [Cement Co. v. Ullmann,159 Mo. App. 235, l.c. 254, 140 S.W. 620.] It is also true that if plaintiffs were prevented by their client, without fault on their part, from completing their employment, they would be entitled to recover as if the contract had been fully performed. [Kersey v. Garton, 77 Mo. 645.] *Page 347 While this petition does not specifically allege that plaintiffs performed all conditions precedent, we think by allowing all reasonable implications and intendments in its favor, it does state facts showing the reason for plaintiffs' non-performance of all of the terms of the contract. It alleges that, after Stearns had lost his injunction suit and the property was again advertised for sale, to be sold on December 10, 1913, Stearns again prevented the sale by entering into an agreement with other stockholders, by the terms of which a private sale was perfected. We think, after verdict, this is a sufficient allegation showing excuse for plaintiffs' non-performance. There is no bill of exceptions here showing any evidence adduced at the trial. The pleadings support the judgment, and, therefore, defendant is not entitled to have the judgment reversed. In the absence of the evidence, the presumption is in favor of the correctness of the judgment. [Patterson v. Patterson, 200 Mo. 335, l.c. 347, 98 S.W. 613.] The Commissioner recommends that the judgment be affirmed.