Ackert v. Barker

• Decision Date: 10 October 1881
• Citation: 131 Mass. 436
• Parties: Montraville Ackert v. Alfred R. Barker
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 436

Montraville Ackert v. Alfred R. Barker

Supreme Court of Massachusetts

October 10, 1881

Hampden. Contract for money had and received. The answer set up that the defendant was an attorney at law, and as such was employed by the plaintiff to collect certain sums of money from certain insurance companies, "that the plaintiff agreed, in consideration of the defendant acting for him in the premises, that said defendant should, out of any and all moneys received by him from said insurance companies, retain one half of the amount received after payment of proper costs and charges;" admitted the receipt of a certain sum from the insurance companies; and averred that the defendant had the right to retain out of it the costs and expenses and one half of the sum remaining after deducting such costs and expenses. Trial in the Superior Court, before Allen J., who allowed a bill of exceptions, which, after stating that the pleadings were a part thereof, was in substance as follows:

The defendant admitted the receipt of $ 836 from two insurance companies, but contended in his answer that the plaintiff could rightfully demand of him only half the whole sum collected, less costs of the suits brought to enforce the demands on which the said collections were made, because the plaintiff promised to allow him one half the amount recovered, in consideration for professional services rendered in this behalf; that he had a right, under such agreement, to stop out or retain such sum; and his testimony was to that effect. He also testified that said agreement did not require him to bear or be responsible for the expenses of said suits.

The defendant asked the judge to rule as follows: "1. If it appears that the percentage mentioned in the alleged agreement amounted only to a measure of compensation in the event of a successful termination of the suits, in distinction from an indefinite fee to be charged in the event of the unsuccessful termination of the suits, then the contract is not champertous, and it can be enforced. 2. If under the terms of the agreement, the defendant had a right to stop out of, or retain from, the funds collected one half the total sum for professional services, and actually had stopped out such sum prior to any notice to him that the contract was abrogated by the plaintiff, then the transaction was so far closed in that behalf that the plaintiff cannot herein undo or avoid the same."

The judge refused to give either of the rulings asked for, but instructed the jury that, if they found there was an agreement by which the defendant was entitled to retain one half the sum collected as compensation for services, such agreement was unlawful, and would not avail the defendant in this action.

The jury returned a verdict for the plaintiff in the sum of $ 808.04; and the defendant alleged exceptions.

Exceptions overruled.

H. C Bliss, for the defendant, cited Wylie v. Coxe, 15 How. 415; Trist v. Child, 21 Wall. 441; Wight v. Tebbitts, 91 U.S. 252; Rohan v. Hanson, 11 Cush. 44; Richardson v. Woodbury, 12 Cush. 279; King v. Green, 6 Allen 139; Tapley v. Coffin, 12 Gray 420; Hubbell v. Flint, 15 Gray 550; Hubbard v. Woodbury, 7 Allen 422; Scott v. Harmon, 109 Mass. 237; Caldwell v. Wentworth, 14 N.H. 431; Treadwell v. Moore, 34 Me. 112; Best v. Strong, 2 Wend. 319.

H. C. Strong, (E. H. Lathrop with him,) for the plaintiff.

Gray, C. J. Lord & Devens, JJ., absent.

OPINION

Gray, C. J.

The defendant's answer and bill of exceptions, fairly construed, show that the agreement set up by the defendant was an agreement by which, in consideration that an attorney should prosecute suits in behalf of his client for certain sums of money, in which he had himself no previous interest, it was agreed that he should keep one half of the amount recovered in case of success, and should receive nothing for his services in case of failure.

By the law of England from ancient times to the present day, such an agreement is unlawful and void, for champerty and maintenance, as contrary to public justice and professional duty, and tending to speculation and fraud, and cannot be upheld, in law or in equity. 2 Rol. Ab. 114. Lord [ILLEGIBLE WORD] 564. Hobart, C. J., Box v. Barnaby, Hob. [ILLEGIBLE TEXT] Nottingham, Skapholme v. Hart, Finch, 477; S. C. [ILLEGIBLE WORD] Ab. 86, pl. 1. Sir William Grant, M. R., Stevens v. [ILLEGIBLE WORD] 15 Ves. 139. Tindal, C. J., Stanley v. Jones, 7 Bing. [ILLEGIBLE TEXT], 377; S. C. 5 Moore & Payne 193, 206. Coleridge, J., In re Masters, 1 Har. & Wol. 348. Shadwell, V. C., Strange v. Brennan, 15 Sim. 346; Lord Cottenham, S. C. on appeal, 2 Coop. temp. Cottenham, 1. Erle, C. J., Grell v. Levy, 16 C. B. (N. S.) 73. Sir George Jessel, M. R., In re Attorneys & Solicitors Act, 1 Ch. D. 573.

It is equally illegal by the settled law of this Commonwealth. Thurston v. Percival, 1 Pick. 415. Lathrop v. Amherst Bank, 9 Met. 489. Swett v. Poor, 11...