# Johnson v. Missouri Pacific Railroad > Supreme Court of Arkansas · June 2, 1919 · 139 Ark. 507 URL: https://www.frixlaw.com/law-library/cases/7809996 ## 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:** On rehearing by Hart - **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/7809996 ## Opinion text HART, J., (on rehearing). The majority opinion is based on a holding by the circuit court that the contract was not ambiguous and that it showed on its face that the administrator was entitled to recover $10,000 before the attorney could recover anything. This court held, that upon the face of the contract itself, there was a doubt as to its meaning in the manner pointed out in the opinion that parol evidence might be used to dispel that doubt. In other words, the court held that it was uncertain whether the words, “My part to be not less than $10,000,” in the first part of paragraph seven refers exclusively to the compromise to be attempted and effected by the administrator in three or four days before the suit was to be brought, or whether they mean that no fee was to be received by the attorney unless a recovery in excess of $10,000 was had against the railroad company, and that, therefore, the trial court erred in holding to the contrary. It is now contended by counsel for the appellee that the trial court heard oral testimony and that its finding was based thereon. While the trial court did hear the testimony, it reserved a ruling on its competency and at the conclusion of the hearing based its finding for appellee on the language of the contract itself, holding that it was not ambiguous. Counsel insist that the statement made by the court and the judgment rendered show the correctness of his present contention. The concluding part of the statement sums up the conclusion of the trial court as follows : “The only question, as I see it, for me to determine is whether or not the attorneys are entitled to recover on the contract entered into. If I can place any construction on or understand the English language, it means that there must be a recovery of more than $10,000 before the attorneys would be entitled to anything. The condition in there that ‘I, the administrator, must receive not less than $10,000,’ Mr. Johnson says that means the administrator must receive $10,000. * * * There is no question but what, if they had compromised for any amount of money over and above $10,000, the attorneys would be entitled under the terms of the contract to recover in accordance with the surplus.” The judgment of the court is as follows: “And thereupon, the cause coming to be heard on the petition of the interveners and the response thereto, and the interveners introduced their testimony and rested, the defendants introduced their testimony and rested, and thereupon the court, having heard the argument of counsel and being fully advised in the premises, doth find that the contract for attorney’s fee as pleaded and introduced herein is for a fee of fifty per cent, of any amount received or paid in excess of the sum of $10,000, and that, the settlement being for the sum of $10,000 only, that under that contract the petitioners are not entitled to recover thereon.” We think that a careful reading of the statement of the court shows that it based its finding on the contract itself, and that it so states in plain terms. This view is strengthened by the language used in. the judgment. After reciting that testimony was introduced, the language is that the court doth find, “that the contract for attorney’s fee as pleaded and introduced herein is a fee of 50 per cent, of any amount received in excess of $10,000.” The words, “contract as pleaded and introduced herein,” show that the court based its findings upon the language of the contract itself and did not consider the oral'testimony introduced. Counsel for appellee in his motion on rehearing also contends that the judgment should be affirmed because the evidence of Johnson himself shows that he is not entitled to recover. He has set out certain excerpts from Johnson’s testimony which are susceptible of that construction; but we do not think his testimony considered as a whole is only susceptible of the construction placed upon it by counsel for appellee. Mr. Johnson was examined and cross-examined at great length, and, as is frequently the case where lawyers are personally interested, his .testimony .is a jumble of facts and argument and for that reason and on account of its length it is impractical to set it out in full. The majority of the court think, however, that when all of it is read and considered together it might be legitimately inferred from it that the words in the beginning of paragraph seven quoted above, had no application except in case of a compromise before suit was brought and that, after suit was commenced, paragraph seven became a nullity and paragraph five only was operative in regard to attorney’s fees. It is evident that the trial court so understood Johnson’s testimony; fox1, if the presiding judge had uxxderstood it only to mean what counsel for appellee xxow contends it to mean, he would have held that Johnson could not recover under his own testimony coxxsidered in its most favorable light to himself. Moreover, even if his testimony as disclosed by the record is only susceptible of the coxxstruction placed upon it by counsel for appellee, it does not follow that the judgment must be affirmed, if we are correct in holding that the judgment of the court below was based solely upon the language of the contract itself. In St. Louis, Iron Mountain & Southern Ry. Co. v. Coleman, 97 Ark. 438 , the judgment was reversed because the court was of the opinion that the circuit court erred in holding that the deceased was guilty of contributory negligence as a matter of law and the direction was that the cause should be dismissed. On rehearing the judgment was jnodified so as to remand the case for a new trial because counsel for plaintiff made a showing that they had reason to believe that they could adduce testimony on a new trial which would carry the case to the jury on the question of contributory negligence. Johnson, in his original brief, made the same contention he now makes as to the effect of his testimony, and counsel for appellee did not challenge the correctness of his contention in his original brief. Hence this state of the record may be taken as a showing by Johnson in good faith that he can make the proof indicated on a new trial of the case. It follows that the motion for rehearing will be overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7809996. Public record. Not legal advice.