Christy v. Chicago, Burlington & Kansas City Railway Co.

70 Mo. App. 43, 1897 Mo. App. LEXIS 242

Opinion

Ellison, J.

Plaintiffs were the attorneys for one Richard Jones in a suit which he instituted against defendant for killing one of his horses and were to receive ^a fee of $125. During the pendency of the protracted litigation Jones died and his widow was appointed administratrix of his estate and substituted as party plaintiff in that cause. Defendant then entered into a written agreement of settlement of the controversy between them as follows:

“Jones, Administratrix of Richard Jones, deceased, v. ^ The Chicago, Burlington & Kansas City Railway Company.

“It is hereby agreed between the parties hereto, that this be and is hereby dismissed at the costs of the defendant and the further consideration of sixty-five ($65) dollars to be paid plaintiff by defendant, and indemnity against any further expense to plaintiff, including attorney’s fees for Christy.

“Sarah E. Jones,

“Adm’trix of the estate of Richard Jones, deceased.

“Palmer Trimble,

“Attorney for Defendant.”

The case was dismissed as agreed. The administratrix (we assume) was paid the $65 agreed upon. She then assigned to these plaintiffs her claim against defendant as to indemnity against further expense as to attorney fees, plaintiffs surrendering therefor their claim against the estate for the fee agreed upon originally which had been allowed by the probate court. Plaintiffs then instituted this suit against defendant on the agreement set out above and obtained judgment for $62.50, the court taking the view that only that portion of the fee going to plaintiff Christy could be recovered under the terms of the agreement. Defendant appeals.

cstipulation1 to*' atunufey^s fees, It is first contended that the terms of the agreement only cover future expense for fees; that is to say, for fees earned after the date of the agree-ment. This is not a reasonable view to take of the agreement. It must be interpreted in the light of the circumstances surrounding the parties and in view of the result which the parties were attempting to accomplish. The case was put to an end by the agreement and hence there could be no future lawyer fee in that case. It is plainly evident that the agreement meant that the plaintiff in that case was not only to be relieved of any costs in the case but also of her attorneys’ fee.

^ce^evidenceT' objecuon at the It is now objected that there was no proof that plaintiff was the administratrix of the estate of Richard Jones. This objection is not good. The defendant’s abstract of the proceedings of plainly enough that such matter was either shown or conceded. Furthermore no point of this kind was made at the trial.

Administra tion: assignment of claim: action for benefit It is next objected that the administratrix had no authority to assign her claim under the foregoing contract to these plaintiffs. This point is likewise not well taken. In one sense her . • » t * *t , ii . a claim agaixist cletexiaaiit was the claim of these plaintiffs. It was taken for the sum (whatever it might be) due them. Conceding that it was not such a claim as could be assigned by the administratrix under section 209 oí the administration law of 1889, yet it being essentially a claim for the benefit of plaintiffs, and in which the estate could have no interest except upon payment to plaintiffs, could be transferred to them. If the action had been prosecuted by the administratrix, it would have been essentially for plaintiffs’ benefit. The judgment is affirmed.

All ■concur.