Opinion
Docket No. 25, Calendar No. 39,230.
Submitted April 8, 1937.
Decided June 7, 1937.
Appeal from Oakland; Doty (Frank L.), J. Submitted April 8, 1937. (Docket No. 25, Calendar No. 39,230.) Decided June 7, 1937.
Bill by R. Kirk Stewart against John O'Hara, Auditor General, Murray D. Van Wagoner, State Highway Commissioner, Raymond W. Walmoth, executor of the estate of Emlitta King Lucas, deceased, Raymond W. Shock, Judson Bradway and wife, DeWitt B. Lucas and Atkinson, Ortman Shock to determine the parties to whom a condemnation award should be paid and for other relief. From decree rendered, defendant Walmoth appeals. Modified and affirmed.
J. Gilbert Quail, for defendant Walmoth.
Atkinson, Ortman Shock ( Raymond Shock, of counsel), in pro. per.
This case involves another controversy in the condemnation proceedings for the widening of Woodward avenue, many other phases of which have been before this court. It concerns the right to an award for the taking of a reciprocal negative easement.
June 26, 1929, the State highway commissioner filed determination of necessity. May 19, 1932, the court commissioners made an award of damages of $1,717.28, which was confirmed by probate court, but no awardees were named in the award.
At the date the State highway commissioner acted, the premises were owned by defendants Judson and Florence Bradway as title owners and contract vendors, and DeWitt and Emlitta Lucas, husband and wife, as contract vendees.
January 16, 1930, Lucas and wife assigned their contract to First State Savings Bank, of Birmingham, as collateral security to a note. November 7, 1934, the receiver of the bank assigned the contract to plaintiff Stewart.
May 22, 1930, DeWitt Lucas assigned "all my right, title and interest in and to" the land contract to Emlitta Lucas.
Plaintiff filed this bill praying payment of the award to the Bradways and himself. The various defendants answered but did not file cross-bill. Defendant Walmoth, as executor of the Emlitta Lucas estate, averred want of knowledge of and neither admitted nor denied most of the allegations in the bill, including one alleging that defendant Shock claimed an interest in the award, and left plaintiff to his proof. Shock's answer, filed later, averred claim of a 50 per cent. interest in the award in behalf of the law firm of Atkinson, Ortman Shock for services and expense in obtaining the award; but he asked no affirmative relief and prayed dismissal of the bill of complaint. Later, on order of the court, Atkinson, Ortman Shock were added as parties and adopted Shock's answer.
The court decreed the award payable to the Bradways as contract vendors and DeWitt and Emlitta Lucas as contract vendees, but with lien of Atkinson, Ortman Shock on the whole award to the extent of 50 per cent. of it.
Walmoth, as executor, alone appeals. The controversy in this court is between him and Atkinson, Ortman Shock.
Counsel accept June 26, 1929 as the time of the taking of the easement. It is not claimed by appellant that the right to compensation runs with the land and passes to subsequent vendees or assignees.
His contention is that the assignment by Lucas to his wife in 1930 transferred to her his interest in the award because of the intention of the parties as disclosed by the language of the assignment and that Lucas now has no interest in the fund. The language of the assignment was common to such instruments and we discover nothing in it to set it apart from other assignments or to indicate that the parties intended it to be other than an ordinary assignment carrying such rights as legally flow therefrom. The contract vendee interest in the award vested in Lucas and his wife before the assignment and there remained.
The principal question is as to the attorneys' fees.
The attorneys rely on a letter, dated May 5, 1930, addressed to Mr. Atkinson, written by Lucas, stating that Mrs. Lucas and he owned the property and inquiring whether Mr. Atkinson would represent them in the condemnation proceedings; the firm's reply to him on May 7th that it would represent him on the basis of 50 per cent. of the damages awarded and would enter an appearance for him and get in touch with him later, Mrs. Lucas' name, however, not being mentioned in the letter; a later statement in Lucas' handwriting setting up the description of the property and claim of damages.
They contend these instruments constituted a contract with Mr. and Mrs. Lucas. As Mrs. Lucas was not a party to any of the instruments and there was no testimony that Lucas was her agent, the contention is without merit.
They also urge that Mrs. Lucas, during her lifetime, was estopped to deny liability on the contract for legal services because they were performed with her knowledge and for her benefit, Lindner v. Hine, 84 Mich. 511, and her executor is equally estopped because the estate will have the advantage of the award.
The difficulty with the contention is that there was no testimony that the firm appeared for or represented Mrs. Lucas in the proceedings, that she knew that a contract for their services had been made, or that she knew they were doing any work for her. Nor did they introduce any evidence as to the reasonable value of their services to her. As a matter of fact, there was no testimony that the firm took any part in the condemnation proceedings at all.
Mr. Shock recognizes the inadequacy of the testimony and attempts to remedy it by reference to the pleadings. He states that the claim of the interest of his firm in the award was set up in his own answer and urges that it is admitted because not denied by the executor for Mrs. Lucas. However, his answer did not call for an answer from the executor, (1) because he did not allege in it that he represented Mrs. Lucas in the proceedings nor for whom the services were rendered, (2) because he claimed no affirmative relief as against her, and (3) because the executor's answer to the bill of complaint denied knowledge of Mr. Shock's claim to the award. Moreover, the claim of lien was denied by plaintiff in his reply to Mr. Shock's answer.
He also relied on the answer of the State highway commissioner, in which, however, the commissioner stated no more than that the firm were the only persons who entered appearance in behalf of Mr. Lucas. The answer did not allege any work by the firm in behalf of Mrs. Lucas and, obviously, it did not call for an answer from the executor because it prayed no relief as against him. So, even an irregular consideration of the pleadings discloses no proof or admission of fact supporting the present claim.
Parenthetically, it may also be said that nowhere did the pleadings set up a claim of estoppel on the part of Mrs. Lucas.
The decree will be affirmed in that part of it which declares the Bradways and both Lucases entitled to the award and declares the attorneys' lien, but must be modified to free the Emlitta Lucas estate's interest in it from the claim of lien of Atkinson, Ortman Shock. Appellant will have costs against the firm appellee.
NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.