Barcus v. Gates

• Decision Date: 11 March 1904
• Docket Number: 500.
• Citation: 130 F. 364
• Parties: BARCUS et al. v. GATES et al.
• Court: U.S. Court of Appeals — Fourth Circuit

130 F. 364

BARCUS et al. v. GATES et al.

No. 500.

United States Circuit Court, E.D. Virginia.

March 11, 1904

This case is now before the court upon the petition filed herein on the 19th day of November, 1901, by John B. Sherwood, one of the counsel for the complainants in the original cause asking the court to settle the amount of his compensation for professional services rendered in the cause. Subsequently to the filing of this petition, the defendants filed their demurrer thereto, which was overruled, and later, on March 24, 1902, their joint answer thereto; and upon the issues thus joined, evidence was taken by the petitioner and the defendants in support of their respective claims, and the cause submitted to this court for determination after full argument by counsel for the parties, respectively.

The petitioner bases his claim to a fee, in part, upon a certain agreement for a contingent fee entered into between himself and the defendants in the petition on the 12th of December 1896, and, in addition, claims that he rendered sundry services not covered by the said contract, for which he should be paid, whereas the defendants insist that the plaintiff's entire service was rendered under said contract, and he is entitled to no compensation other than the 10 per cent. therein referred to. The contract in controversy is as follows 'Agreement, made this 12th day of December, 1896, by and between James Q. Barcus, John M. Thompson, R. A. Edwards, and H. A. Huston (said Edwards and Huston represented herein by said Barcus and Thompson) of the first part, and John B Sherwood, attorney at law, of the second part, witnesseth That said parties of the first part hereby employ said second party to collect of and from the persons residing in the State of Virginia all that is possible to collect, either by suit or other lawful means, that said persons have defrauded said parties of the first part by means of representations, personal or by agent, as to the existence of certain beds of phosphate, that amount being in the sum of about twenty thousand to twenty-five thousand dollars; and in consideration of such services, they agree to pay him a sum equal to ten per cent. of all he shall collect, either in money, land, or any other thing of value that may be accepted by said parties in settlement, or which amount two hundred dollars in cash is paid down upon the signing of this instrument; also to pay all necessary expenses of said Sherwood upon proper vouchers being presented. And said second party hereby and herewith accepts said employment, upon said terms above set forth, and will give his earnest attention at once to the collection of said monies, with the least expense, time, and trouble to said first parties as possible.

'Witness our hands in duplicate the day and date first above written.

'John M. Thompson. 'James Q. Barcus. 'R. A. Edwards, by J. Q. Barcus. 'H. A. Huston, by J. Q. Barcus. 'John B. Sherwood.'

The following is a brief summary of the services performed by the petitioner, as claimed by him to be under the contract, as shown in his petition:

'Your petitioner further shows to the court that he, after the execution of said contract, thereupon entered into a study of the facts and law of the case, and this included an examination of all the books of the American Plant Food Company, and of letters and telegrams leading up to the formation of said company, and a mass of correspondence, and he was busily employed therein from the date of said contract until about the 7th day of January, 1897, when he came to Richmond, and, after consultation with Hon. L. D. Yarrell, who had been employed prior thereto by complainants, filed on the 19th day of January, 1897, in the office of the clerk of this court, the printed bill of the complainants herein.

'Your petitioner further shows that after all the defendants had entered their appearance by counsel, and each had filed demurrers, settling up seventeen grounds of demurrer, and the same had been set down for argument on the 1st day of June, 1897, your petitioner came on to Richmond again, and orally argued said demurrers before Hon. Robert W. Hughes, then presiding as judge of this court, and that said judge, after taking said cause under advisement, in the spring of 1898 sustained said demurrers and dismissed complainants' bill; that thereupon your petitioner, after a consultation with the complainants, against their best judgment, as they all then stated, induced them to pray an appeal to the Circuit Court of Appeals for the Fourth District (89 F. 783), and to file a bond and pay the costs; and he thereupon filed the proper papers on appeal, and wrote the brief of the complainants, and also the reply brief of complainants in said cause, and such proceedings were had in said cause that in November, 1898, said Circuit Court of Appeals reversed the cause on all seventeen points of contention, and remanded the same to this court for a hearing on its merits.

'Your petitioner further shows that shortly prior to the 1st day of September, 1899, said complainants were not ready for trial, for lack of material evidence they had neglected to obtain, and thereupon on last said day he again came to Richmond, and, in company with his associate, Hon. L. D. Yarrell, spent between two and three weeks in traveling over the eastern part of Virginia, including Richmond, Tunstalls, Whitehouse, West Point, New Kent Courthouse, Norfolk, and Portsmouth, in obtaining evidence of the facts in the cause; and this petitioner also went alone to New York City and Cincinnati, Ohio, and spent some days in consulting with chemists there who had analyzed said lands and other adjacent thereto.

'Your petitioner further shows that said cause was set down for hearing in open court before Hon. Edmund Waddill, Jr., on the 11th day of December, 1899, and that at this time Hon. C. V. Meredith became associated with your petitioner and said Yarrell, as local counsel, for the purpose of the said hearing before the court; that the defendants were represented by eminent legal counsel of the highest professional standing, and the hearing on the said cause was commenced on the 11th day of December, 1899, and evidence was taken daily, with both day and night sessions, continually until the morning of the 23d day of December, 1899; that all through said trial his associate counsel and the complainants were dependent upon your petitioner for all knowledge of evidence and production of witnesses, owing to the close and intimate study the petitioner had made of said cause, and were also dependent upon said petitioner for authorities necessary for ready use on the trial of said cause; and he further states that on account of the stress of business in said court, and the Christmas holidays, the court continued the case for argument to the 28th day of February, 1900.

'Your petitioner further shows that he expended the month of February in studying one thousand pages of typewritten evidence and in preparing his argument thereon, and came on to Richmond a few days prior to the 28th day of February, 1900, and on that day entered with associate counsel into oral argument of the said cause, which was continued daily for one week, and thereupon each side was granted permission to present printed briefs on the points made in argument, and requested to exchange the same.

'Your petitioner further shows that at once he, with his associate counsel, prepared and filed a written brief, and that when the last of the defendants' briefs had been filed, during the first week in August, 1900, your petitioner prepared, at his home, in Indianapolis, Indiana, a reply brief, and caused it to be filed during the first week in September, 1900.

'Your petitioner further shows that the chief reliance of defendants' counsel in the trial and on the argument was on the subject of ratification by complainants-- a subject which had not been suggested by the facts stated to your petitioner on and prior to said 12th day of December, 1896, and prior to your petitioner entering into the contract above set out-- and therefore additional and unexpected labor was thrown on your petitioner and associate counsel.

'Your petitioner further shows that on the 6th day of July, 1901, the presiding judge rendered his opinion in said cause, and the settling of the decree in favor of the complainants was set down for argument on the 1st day of August 1901; that your petitioner thereupon came to Richmond a few days before, and was engaged for three days with his associate counsel in argument upon the form and substance of the decree, and upon a petition filed for a rehearing of the cause, until the close of the 3d day of August, 1901, when the final decree was entered in this cause for about thirty thousand dollars, in the aggregate, of principal, interest, and costs, against each and all the defendants, except the Virginia Marl Phosphate Company, and specifically setting aside said $27,000 lien and the deed from last said company to the American Plant Food Company.'

Services Outside of the Contract.

The petitioner claims, in addition to the services under the contract, he performed great labor, neither covered nor contemplated by the contract, as is fully set in said petition, and which may be summarized as follows: First. Services rendered in securing evidence preparatory to the hearing of the cause upon its merits, in Virginia, in which some three weeks' time was taken out of his office. Second. For time occupied in Virginia, after the rendition of the decree in favor of his clients, looking to the sequestration of the property and estate of the defendants extending from the 19th of September, 1901, to the 21st of October, and from November 6 ...