
    DORAN v. CAMPBELL.
    (No. 5840.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1917.
    Rehearing Denied May 9, 1917.)
    1. Appeal and Error <§^1011(1) — Bindings Based on Conflicting Evidence.
    Binding's of trial court based on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent, Dig. §§ 3983-388S.]
    2. Attorney and Client <§=>164 — Claim Against Client — Application oe Money Collected.
    An attorney has the right to apply money collected for his client to payment of any valid subsisting claim he has against her.
    [Ed. Note. — Eor other cases, see Attorney and Client, Cent. Dig. § 315.]
    Appeal from Thirty-Seventh District Court, Bexar County; W. S. Anderson, Judge.
    Proceeding by Annie Stell Doran against R. A. Campbell. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    James Raley, of San Antonio, for appellant.
   SWEARINGEN, J.

Appellant, Annie Stell Doran, brought this proceeding against R. A. Campbell in the district court to recover $85, claimed to have been collected for her by ap-pellee while acting as an attorney for her. The proceeding is brought by motion as provided by article 332 of the statutes. The statutory penalty of 20 per cent, was also asked for. The court rendered judgment for appellee.

The undisputed facts are that appellant employed appellee, a practicing attorney, to represent her as an attorney in a suit for divorce. Appellee accepted the employment under an express contract for compensation. The divorce suit was brought and judgment of divorce rendered. By virtue of the decree in the divorce suit the community homestead was sold, and of the proceeds $150 was paid to the appellee, as the attorney for appellant, by the sheriff. Appellee applied the entire $150 to settlement of his agreed fee. Appellant demanded one-half of the $150 from ap-pellee.

Appellee received $10, in addition to the above $150, before the divorce suit was filed. Appellant testified that she advanced this $10 to appellee for the purpose of paying cost of citation by publication, but that ap-pellee appropriated it to his own use. Ap-pellee testified that the $10 was paid to him by one Johnson, whom appellee represented in the corporation court.

There is a conflict in the evidence as to whether appellant bound herself to pay the $150 to appellee, or whether she bound herself to pay nothing, but agreed to permit appellee to collect $150 out of her husband’s part of the community property, then used as a homestead by appellant. Appellant testified “that she hired R. A. Campbell to get a divorce for her and he told her that he would charge $150.” “I agreed to his charge of $150.” She further testified that appellee told her at the time the amount of the fee was agreed to that he would make the homestead bring, when sold, enough to pay her $400 or $500 for her half after all costs were paid. The homestead was community property, of the approximate value of $1,200, and incumbered for $200. Appellant further testified that the $150 fee was to be paid out of her husband’s part of the proceeds of the sale of the homestead. Appellee testified that there was no mention of his attorney’s fee coming out of appellant’s husband’s estate; that appellant well knew and understood that appellee looked to her for the payment of his fee. Under his contract with appellant, appellant owed him the $150 fee. Appellee denied that anything was said about the amount appellant would receive from the sale of the property.

It will appear from the above statement that there is a conflict in the evidence as to the source from which the $150 would come. The trial court found in favor of the truth of appellee’s testimony. We see no reason to disturb the finding of that court.

There is no question that the appellee had the right to apply the money collected for his client to any valid subsisting claim he had against appellant at the time he collected money for her. Blair v. Blanton, 54 S. W. 321.

The judgment is affirmed.  