Keleher v. Johnson

OPINION. REYNOLDS, P. J. (after stating the facts as above). — This last tried case was appealed to the Supreme Court. That court holding the amount in controversy was not within the jurisdiction of that court but of ours, transferred it to our court, as see Kelerher v. Johnson, 272 Mo. 699, 199 S. W. 935. The only comment upon the issues in it is at page 702, where it is said: “Defendant does not plead a counterclaim, nor does he seek affirmative relief, hut raises only such issues as would, if allowed, defeat the plaintiff’s right to a recovery.” [365] This is the second trial of this case in the circuit court. On the first trial it was sent to a referee, who dismissed the cause on the ground that the contract between the parties was champertous. The cause was appealed to our Supreme Court, that contention was overruled and the cause remanded, as see Kelerher v. Henderson, 203 Mo. 498, 101 S. W. 1083. It is urged by learned counsel for the administrator of Henderson that the matter of the contract between plaintiffs and Henderson & Shields and between the plaintiffs Kelerher & Company and the bondholders who placed bonds and coupons in their hands, as now shown, was not before the referee or the Supreme Court at the former trial and that therefore the question of whether this is a champertous contract is an open question. We cannot accede to this view. While it is true that the court held, when the case was before it, that the defense of champerty was an affirmative defense which must be pleaded, and that it had not then been pleaded, a careful reading of the opinion discloses that the Supreme Court did have before it this contract between the bondholders and Kelerher & Company and, in effect, held that while that contract 'might be champertous, the contract between the plaintiffs and Henderson & Shields was not subject to that claim. So the referee who last passed on the case held. We do not feel called upon to express our own view on this question, but feel bound to follow the decision of our Supreme Court in its decision on it in this same ease and so hold the contract between plaintiffs and the firm of Henderson & Shields is valid. It is now the settled law of our State, as we understand it, that this being a suit at law and involving a long account which would make it a case for compulsory reference, the finding of the referee, when approved by the trial court, has the force and effect of a special verdict of the jury and is binding on appeal, if supported by substantial evidence. That is the rule of decision announced by our Supreme Court in the case of City of St. Louis to the use of Carroll-Porter Boiler [366] & Tank Co. v. Parker-Washington Company, 217 Mo. 229, 196 S. W. 767, commonly referred to as '‘the Parker-Washington Company Case.” That was a ease heard and determined in banc. The opinion was by Chief Justice iGraves, rendered in division, and adopted in banc, all concurring except Judge BoNd, who dissented in an opinion filed, Judge WoodsoN concurring in the result. That opinion was under review by the Supreme Court in Johnson v. Star Bucket Pump Co., not yet officially reported, hut see 202 S. W. 1143, the opinion again written by Chief Justice 'G-eaves and concurred in by Judges Blair and Williams, Judge Paris concurring in the result. Judge BoNd dissented in a separate opinion in which Judges Walker and WoodsoN concurred. It was again before our Supreme Court in Roloson v. Riggs, not yet officially reported but see 203 S. W. 973. That case was also in banc, the opinion being written by Mr. Commissioner Railey and that was adopted as the opinion of the court, Chief Justice Graves and Judges Paris, Blair and Williams concurring, Judge Walker concurring in the result, and Judge WoodsoN concurring in all except what is there said in affirmation of the majority view in the Parker-Washington Company case. Judge Borro alone dissented, because, as he states, the opinion does not state correct rules of review in compulsory reference cases. We may conclude, therefore, that the rule announced in the Parker-Washington Company Case, supra, is to be accepted as the rule in our State. It follows that in this, an action at law, the finding of the referee, confirmed in main as it was by the court, is to be taken and considered as in a special verdict of the jury in actions at law. It is true that the learned trial court made some supplemental findings, modifying in some respects the result reached by the referee, but he was entirely within the facts and the law, indeed was proceeding by agreement of counsel in these modifications. We find a somewhat similiar rule prevailing in the State of Kentucky, in Howell v. Chaney, 180 Ky. 646, 203 S. W. 536, the Court of Appeals of that State holding that it [367] was immaterial as to whether the parties had consented to a reference as long as the report of the master was regularly made, since that report was merely advisory to the trial court; and the only question about which the appellate court need concern itself is whether the judgment is sustained hy the evidence. We see no error whatever in the finding in favor of the plaintiff Kelerher, assuming that the contract was not champ'ertous. In point of fact, there was no dispute by defendant that that is correct — the question of champerty out of the way. Plaintiff Kelerher now claims it should be for a larger sum. We do not agree to that, as we think it awarded Mr. Kelerher all to which he is entitled under the testimony, and is supported hy substantial testimony. The items claimed and allowed in favor of defendant consisted of expenses connected with enforcing the payment of the judgment in the name of Samuel C. Davis & Company, and which the defendants had obtained and which services were rendered either through themselves or through others that they employed. The contract, to repeat it so far as here necessary, reads:- “It being understood that said P. E. Kelerher & Company shall pay one-half of any and all reasonable expenses or sums of money that may he necessary and proper for us to expend to insure the successful prosecution of said suit.. In other words, said P. F. Kelerher & Company to share equally with us in the expenses and profits accruing from said suit.” Beyond all question, no profits could accrue from that suit unless the judgment was collected in whole or in part. So the learned referee construed it. We do not think, therefore, that the position of learned counsel for plaintiff is sound, when they contend that no expenses were to he charged up against- plaintiffs to which they were to contribute except such as were incurred in obtaining the judgment itself. Obtaining the judgment itself, without satisfaction of it in whole or in part, could hy no possibility yield profits. All the expenses which were allowed were those which the [368] referee found to be proper and necessary expenses connected with the obtaining of payment of 65 per cent, of the judgment. There was substantial evidence of these and that they were reasonable. So the referee found. As we read the testimony bearing on this, we think the referee was correct both on the facts and on the law. We do not think it will serve any useful purpose to set out in detail even a synopsis of the voluminous testimony taken in this case. It is substantially reviewed by the referee in his finding and by counsel in their very elaborate and elucidative briefs and arguments. We find no error to the prejudice of either party in the rulings of the referee or to the action of the learned trial court in passing upon his report, nor in the judgment which that court rendered. The judgment of the circuit court is affirmed. Allen, J., concurs; Becker, J., not siting.