# Johnson v. Missouri Pacific Railroad

> Supreme Court of Arkansas · June 2, 1919 · 139 Ark. 507

URL: https://www.frixlaw.com/law-library/cases/7809995

## Case

- **Full name:** Johnson v. Missouri Pacific Railroad Company
- **Court:** Supreme Court of Arkansas
- **Decided:** June 2, 1919
- **Citations:** 139 Ark. 507
- **Precedential status:** Published
- **Opinion:** Dissent by McCulloch
- **Judges:** Hart, McCulloch
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7809995

## Opinion text

McCULLOCH, C. J., (dissenting). I fail to discover any ambiguity in the words, “my part to be not less than ten thousand dollars, ’ ’ or in the relation of that language to the other parts of the contract. If it means anything at all, it constitutes a modification of the terms specified in the printed portion of the contract and means that in the event of recovery the- plaintiff’s part of that recovery is to be as much as $10,000, and that the fee, if any, must come out of a recovery in excess of that amount. The words cannot, it seems clear to me, have any reference at all to the compromise clause, as that part of the contract which relates to the compromise, is complete without the words quoted above, for it is distinctly provided therein that the plaintiff should have the privilege of making a compromise settlement up to $25,000, and that in that event the attorney should receive no fee. The contract having unequivocally given the plaintiff the right to compromise up to $25,000 without fee to the attorney, it was entirely superfluous to add the words specifying that the plaintiff was to receive $10,000 for his part, if they were intended to apply to the compromise before suit. The fact that there is ambiguity in that part of the paragraph which refers to the “four or five days notice” does not afford grounds for the admission of testimony with respect to the unambiguous portion of the sentence. Brown & Hackney v. Daubs, 139 Ark. 53 .
But if it be conceded that there is ambiguity sufficient to let in proof, of the intention of the parties, Mr. Johnson himself testified that the words “my part to be not less than ten thousand dollars” had no reference to the compromise, but that it applied to the contract after the effort to compromise had been exhausted, and his own testimony defeats his right to recover a fee in the case. Here is his testimony, literally, on that subject:
“Q. That had no reference to his settlement of the case, the part Mr. Wall wrote in the contract, and if he could get a settlement up to $25,000, he was to have it all and you was to get nothing?
“A. Yes, if he found he was in error in his then conviction that he could not get them above $5,000, but, if he could get them above that figure, even up to $25,000, and an offer that the family would accept, and he settled it and turned me loose, I was not to get any fee at all.
“Q. If he made settlement for any sum up to $25,-000, he was to get the money, and if he failed and you took it up, he was to have $10,000 before you got any fee?
“A. That special $10,000 provision was not a provision or a part of the contract at all, except on the condition that when he exhausted his efforts of settlement then he would not disturb my management of the case. ’ ’
Now, if the contract means what it seems to me that it means, and what Mr. Johnson himself says it was intended to mean, i. e., that the attorney was not to get a fee in any event except out of a recovery in excess of $10,000, then it follows that there can be no recovery in this case, for the reason that the plaintiff had the right, independently of any contract to control his own litigation and to compromise for any sum he saw fit to accept (St. Louis, Iron Mountain & Southern Railway Company v. Blaylock, 117 Ark. 504 ), and as the attorney agreed in the contract that he should not receive a fee except in the event of a recovery of more than $10,000, he is bound by that contract and cannot assert a lien against the railway company which is in conflict with the terms of his own contract with his client.
If the language quoted above be construed to have reference to a compromise and to operate as a limitation as to the amount for which the' client could settle his own case, then that interpretation of the contract defeats its validity under the law announced by this court in the case of Davis v. Webber, 66 Ark. 190 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7809995. Public record. Not legal advice.