Rust v. Larue, &C.

• Decision Date: 01 January 1823
• Citation: 14 Ky. 411
• Parties: RUST <I>v.</I> LARUE, &c.
• Court: Kentucky Court of Appeals

14 Ky. 411

RUSTv.

LARUE, &c.

Court of Appeals of Kentucky.

Fall Term, 1823.

From the Hardin Circuit Court, the Hon. Paul I. Booker sole Judge.

Crittenden for Rust; Haggin and B. Hardin for Larue.

OPINION OF THE COURT, BY JUDGE MILLS.

Rust, the present appellant, filed his bill against Larue, the appellee, for the purpose of redeeming some slaves and other articles held by Larue as a pledge. The court below sustained the claim of redemption, and on an appeal to this court the same right was sustained; but the cause was reversed, for some errors in the details of the decree, at the spring term, 1817, in the report of which a full history of the transaction is given. After the cause was returned to that court, and commissioners were appointed to take an account of the money due, the hire of the slaves and costs of the maintenance of the young and infirm, Larue obtained leave and filed a supplemental answer, alleging that Rust had, at the commencement of the suit, employed Benjamin Hardin, Esq., as his counsel, and by a written contract had engaged to give him, in case of success, one-third of all the slaves or money that might be recovered, as a compensation for his services, which Hardin had performed; and that he had purchased the contract from Hardin for a valuable consideration, since the rendition of the former decree of this court; and he exhibited the contract and the transfer thereof, and made Hardin and Rust defendants to this answer as a cross bill, and prayed that after the account was taken and settled he might be permitted to retain one-third of the recovery in his hands, in satisfaction of this contract.

To this Rust answered, admitting the contract with Hardin, and alleges that he was so poor when he made it that he had to give it for the purpose of obtaining counsel for a contingent fee, as $100 was charged by other counsel to whom he had spoken; but he alleges that Hardin abandoned the cause in the court below, and at the trial was absent in congress, and he had to sell his interest in the suit to his sons, for the purpose of raising money to carry it on, and then had to pay another counsel $50 to argue the cause; that after he had obtained the decree his adversary had appealed; that by the contract with Hardin he was to follow it through all the courts to which it went, and was to appear in the court of appeals for him, but did not appear; that he met with Hardin at Frankfort, during the term of that court at which the cause was tried, before it came on, and applied to him to stay and argue the cause; but Hardin refused, and would have nothing further to do with it, and left this state, on his way to congress, before the cause was reached, and he had to employ other counsel, for large fees, and that he had never recognised Hardin as his counsel afterwards. He alleges that he is willing to pay Hardin a liberal compensation for his services; but resists the dividing of what was recovered and contends that it is unreasonable and ungenerous to ask it. To this response he makes Hardin a defendant, as well as Larue.

Hardin answered, admitting the transfer of his contract to Larue, and denying that he ever engaged to pursue the cause through this court, in which he then had never attempted to practise, and avers that his undertaking was confined to the court below, and that there he had wholly conducted the cause, and had extended his services to taking depositions, and other things not within the purview of his duty as counsellor or solicitor in the cause, until the whole preparation was completed. He denies that he ever abandoned the cause, and alleges that the only color to such an allegation was, that Rust was imprudent in talking about the suit during its pendency, and he was afraid that, as the case rested much on parol testimony, Rust would, by his idle talk, destroy the suit, as he was aware that the opposing party was watching the conversation of Rust, to obtain from him some confession; and to prevent this, he had threatened Rust, if he did not quit his chattering about the cause, he, Hardin, would abandon it; but never did so, as he made the menace to restrain Rust and for his benefit. He admits that he met with Rust in Frankfort, during a recess of this court, at the term when the cause was tried, and that Rust proposed his staying for the purpose of arguing the cause, and that he refused to do it, reminding Rust that his contract did not compel him to do so, and that his official duties in congress then required his attention there, so that he could not, and did not stay. He admits his absence when the cause was first tried in the court below; but avers that the cause was fully prepared, and that he had engaged Charles A. Wickliffe, Esq., a professional gentleman of acknowledged talents, to argue the cause in his stead; but Mr. Wickliffe was prevented from attending that court by sickness; that afterwards, discovering that Rust had employed other counsel, he immediately took up and discharged the note for $40, given as a fee, and offered to pay Rust the remaining $10, which had been paid; but Rust refused to receive it. He exhibits this note in court, and also the $10, to be delivered to Rust. He avers that Rust brought to him the opinion of the appellate court, which he had caused to be entered and the necessary orders made to complete the cause, and he afterwards, on the application of Rust, or son, wrote a notice of a meeting of the commissioners to take the account, and attended on the day, but the attendance of the commissioners was not procured by Rust, and that from that time Rust, through some advice he had received, first conceived the intention of defrauding him out of his contract, and procured other counsel; but he nevertheless obtained a final decree.

The court below first decreed to Rust two-thirds of the slaves, and to pay the two-thirds of the mortgage money due, and retained the cause, as to the remaining third, to abide the contest now raised between Hardin, Rust and Larue; and finally, on the hearing of that controversy, decreed in favor of Larue, that he should retain the remaining third in discharge of the contract with Hardin. From this decree Rust has appealed.

It is now contended for the appellant, that after the cause had progressed through this court, and a decree was here directed in the court below, the attitude of the parties could not be altered, and that it was incompetent for Larue to introduce or set up any claim which might prevent him from restoring the slaves.

Whether a bill of review will lie to a decree directed by this court, it is unnecessary now to inquire, as the answer of Larue, filed after the return of the cause from this court, does not seek to review or change the decree. That Larue could not set up any claim calculated to defeat the decree against him in whole or in part, which he might have set up before the final hearing, is readily admitted; but his answer now under consideration is not of this character. It yields to the principles of the decree as settled by this court, and is in affirmance of them, and claims the one-third as a purchaser of the benefit of it. Although this answer is styled by the writer an amended answer, yet it is not entitled to that name. It is purely supplemental, and alleges facts which have occurred since the decree, and shows that according to the principles of the decree, by subsequent events, he is entitled to one-third. Suppose that Larue had purchased out the whole decree from Rust himself, or had by operation of law become entitled to the slaves, could it be contended that Rust must still go on and obtain the decree, and take from him the estate? We conceive not; and we perceive no impropriety, according to the settled rules which govern courts of equity, in permitting Larue to set up the matter alleged, for the purpose of retaining the slaves in his own hands, if his claim is otherwise good.

We will then proceed to examine the facts set up by the defence of Rust. The writing between Rust and Hardin is signed by Rust alone, and contains the stipulations on his part in full; but barely recites, that "whereas he had employed B. Hardin to bring a suit in chancery for him, in the Hardin circuit court, against Larue," &c., and does not set forth the extent of Hardin's engagement; or, if it does, it evidently did not compel him to pursue the cause in this court. One witness is produced, to prove what his undertaking was. His deposition is taken twice, and in neither is he asked the question, whether there was any explicit engagement to pursue the cause to the appellate court; but in both he says, "he thinks Hardin was to attend through the whole course of law." Whether this thinking is only an inference, or an awkward mode of stating the fact, the testimony is quite too weak, according to a well settled rule, to overturn the positive denial of Hardin's answer in direct response to the charge of his adversary. Of course, the contract must be taken not to extend to the prosecution of the cause in this court, and any objection to the performance of the contract, on account of Hardin not pursuing the cause, must be unavailing.

The allegation that Hardin abandoned the cause in the court below, is likewise not supported by proof. The evidence adduced on that point agrees with the answer of Hardin, that he threatened to do so, if Rust would not leave off his imprudent conversations and confessions. Besides, the recognition of Hardin as the counsel, long afterwards, by placing the opinion of the appellate court in his hands, to procure a decree in conformity with it, and procuring him to write...