Kee v. Lamon Lamon v. Kee

• Decision Date: 21 October 1895
• Docket Number: 34,Nos. 33,s. 33
• Citation: 40 L.Ed. 165,16 S.Ct. 11,159 U.S. 317
• Parties: McKEE v. LAMON et al. LAMON et al. v. McKEE
• Court: U.S. Supreme Court

159 U.S. 317

16 S.Ct. 11

40 L.Ed. 165

McKEE

v LAMON et al.

LAMON et al.

v. McKEE.

Nos. 33, 34.

October 21, 1895.

Appeals from the Supreme Court of the District of Columbia.

This was the original bill filed against McKee by Lamon and Black, surviving partners, and was based upon the assignment of the original Cochrane contract for a compensation of 30 per cent. to Jeremiah S. Black, and the substitution of Black in the place of Cochrane, as the attorney, counsel, and agent of the Choctaw Nation for the prosecution of their claim. This contract was entered into between McPherson, as the executor of Cochrane, and Jeremiah S. Black, on the 8th of November, 1866, and was assented to by the delegates of the Choctaw Nation, whereby the right of Cochrane to receive the 30 per cent. became vested in Black. This assignment seems really to have been made for the benefit of Lamon, who raised and paid $25,000 of the $75,000 which it was contemplated should be paid to Cochrane, in the verbal arrangements carried on between Lamon and Cochrane before his death. The bill, after setting forth the facts stated in the interpleader case, averred that on the dissolution of the firm of Black, Lamon & Co., in 1872, Lamon succeeded to the interest of Black in the remainder of the 30 per cent., after certain prior claims thereon should be paid.

The only averment of the performance of the Cochrane and Black contracts by the firm of Black, Lamon & Co., or either member of such firm, was that 'they undertook the prosecution of said claim, and urged the same with great persistence before the committees of congress, and did all in their power to bring about such legislation as the situation demanded, and they so continued so long as the firm of Black, Lamon & Co. existed; that after some years said Jeremiah S. Black, by reason of his failing strength and advanced life, was compelled to abandon the active work of his profession, and the said copartnership was for that reason dissolved, and the duty of prosecuting said claim devolved solely upon said Lamon.'

The bill was subsequently amended in this particular by averring 'that said services were rendered and said advances were made with the full knowledge and consent, and at the special instance and request of the Choctaw Nation, with the agreement and understanding that the said plaintiffs were to receive, as compensation for said services, such sum as the same were reasonably worth, to be paid out of the money claimed as aforesaid, when paid by the United States, and that said agreement and understanding was independent of the said Cochrane contract, and of the rights claimed by the plaintiffs under and by virtue of the said Cochrane contract.' A subsequent paragraph set up a lien upon the judgment rendered in favor of the Choctaws, and upon the amount due from the United States, and upon the 30 per cent. fund set apart by the Choctaw Nation for payment for services.

The amended bill further averred that while the question of the payment of the claim was pending before congress, McKee procured the passage of two acts of the council of the Choctaw Nation, which acts were passed, as requested by McKee, with the express understanding and agreement between McKee and the Choctaw Nation that he would 'pay to these complainants and others such sum or sums of money as they were justly entitled to receive for the services rendered and money expended by them in the prosecution of said claim, and with the further agreement that when said McKee should receive' the money set apart by said acts, as aforesaid, 'that he, the said McKee, would hold the same in his possession in trust for the benefit of such persons, including these complainants, as might be entitled to some part thereof.' The prayer was that McKee be enjoined from collecting the 30 per cent. set apart for the payment of expenses; that a receiver be appointed to collect the same from the treasury, and pay it out to the plaintiffs and such other persons as had a just and equitable claim thereto.

Upon filing this bill, an order was entered enjoining the defendant from receiving this money from the treasury. McKee, however, disregarded this order,—no bond having been given as required by the rule of the court,—and drew from the treasury $783,768.82, which was 25 per cent. of the whole judgment, 5 per cent. of the 30 per cent. having been paid to one Luce, who had taken Blunt's place in the contract. A rule was issued against McKee, to show cause why he should not be punished for contempt in violating the restraining order of the court; but, it appearing that no bond had been filed, the motion was overruled, and McKee was discharged. On the discharge of the rule, plaintiffs filed a petition based on the bill, answer, and affidavits, and prayed for the appointment of a receiver. After full argument the court ordered that McKee should pay into court the sum of $136,500, to be held subject to the order of the court. McKee refused to obey this order, and absconded from the jurisdiction of the court. An appeal, however, was taken from the order, and the same was vacated and rescinded on December 3, 1889.

Subsequently, upon a hearing upon pleadings and proofs, a decree was rendered in favor of Ward H. Lamon against McKee, as compensation for his services rendered and of his disbursements and expenditures, for $35,000, with interest thereon at the rate of 6 per cent.; and so much of the bill as related to claim of Lamon and Black, or either of them, as assignees of the so-called Cochrane contract, and as surviving partners of Black and Lamon, or Black, Lamon & Co., was dismissed.

From this decree the plaintiffs Ward H. Lamon and Chauncy F. Black appealed to this court.

Nathaniel Wilson and James Coleman, for appellants Lamon et al.

John J. Weed and Jeff. Chandler, for McKee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

In these cases (Nos. 33 and 34) we are concerned only with the decree in Lamon's favor for $35,000, and with that part of the decree dismissing the claim of Lamon and Black. The bill was originally filed for the purpose of securing the payment to Lamon and Black of 30 per cent. of the sum of $2,858,798.62, which the appellant was about to receive from the United States, under the authority received by him from the Choctaw Nation, and also for an injunction restraining him from receiving such sum of money, and for the appointment of a receiver, who should be authorized to collect this sum from the treasury whenever the same should become due and payable, and also for an accounting between the appellant and Lamon and Black in respect to the amount due them for services rendered and money expended in the prosecution of the claim. It appearing, however, that the contract of February 13, 1855, was never carried out, nor the money ever collected, as required by the contract between Cochrane and the Choctaw Nation before Cochrane could become entitled to his 30 per cent., complainants amended their bill by averring that McKee procured an act of the Choctaw council, of February 25, 1888; making provision for the payment of the amount due under his contract with them, by an express understanding and agreement that he would pay to the complainants and others such sum or sums of money as they were justly entitled to receive, for services rendered and money expended by them in the prosecution of their claim. In his answer, McKee denied the allegations of the bill, so far as it related to services alleged to have been rendered in the prosecution of the said claim by the firm of Black, Lamon & Co., or either of them, previous or subsequent to July 16, 1870, but, on the contrary, averred that Black retired from and abandoned the case before such date; that by reason of such abandonment the Choctaws, being without counsel, solicited himself and Blunt to take charge of the prosecution of such claim.

1. The first point made by the appellant McKee, that the supreme court of the District of Columbia was without jurisdiction to entertain the suit, because, upon the averments of the bill, the suit was, in legal effect, one against the Choctaw Nation, to which the Nation was a necessary party, is without foundation. The suit is neither directly nor indirectly against the Choctaw Nation; nor, if made a party defendant, would the complainants be entitled to any relief against the Nation. No claim is made against it, nor is any attempt made to impair the effect of its legislation. By its first contract with Cochrane, made by its agents, February 13, 1855, in pursuance and by...