Krieger v. Bulpitt

SPENCE, J.

This is an appeal by the third party claim'ant from a judgment determining that defendant was the owner of a certain airplane and that the third party claimant held the proceeds of a sale thereof in trust for defendant. A purported appeal is also taken from a minute order denying a motion to quash execution, a motion to dismiss, and overruling a demurrer to plaintiffs’ petition to determine title.

Appellant’s sole contention is that the judgment upon which execution was issued is void on its face because it is based on a contract contrary to public policy, and that therefore any proceedings to enforce such judgment are likewise void. But an inspection of the record refutes appellant’s claim and sustains the validity of the judgment.

Prior to March 8, 1949, Dr. Helen Bulpitt, the former wife of defendant, filed an action for divorce against defendant. The latter retained plaintiffs, who are attorneys at law, to represent him in the pending divorce action and to secure a favorable property settlement. Accordingly, on the date mentioned he entered into a written agreement with plaintiffs for their employment under a contingent arrangement, allowing them for “services rendered and to be rendered” 10 per cent of the appraised value of all property secured for defendant, but in no case should their fee be less than $5,000 nor more than $7,500. Pursuant to such employment, plaintiffs negotiated with the attorneys for defendant’s wife and secured a property settlement agreement. Defendant orally approved the agreement but later

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refused to execute it and permitted his wife to secure an interlocutory decree of divorce without contest.

Defendant refused to pay plaintiffs any attorney fees or costs. Thereupon plaintiffs brought suit against defendant, basing their first cause of action upon the express terms of the agreement and their second and third causes of action upon common counts for the reasonable value of their services. Defendant answered and counterclaimed, alleging plaintiffs’ neglect of their duties as attorneys. This answer and counterclaim were stricken on motion of plaintiffs, and plaintiffs’ motion for a summary judgment was granted. The trial court found all allegations of the complaint true, that plaintiffs were entitled to compensation in accordance with their agreement with defendant, but that they had not established their right to the maximum fee therein fixed and should only be allowed the minimum fee of $5,000. Accordingly, on January 6, 1950, judgment was given in plaintiffs’ favor for $5,050, the additional $50 representing the amount of costs which they had advanced on defendant’s behalf in the divorce action.