Cecil v. Clark
| Decision Date | 31 October 1911 |
| Citation | 72 S.E. 737,69 W.Va. 641 |
| Parties | CECIL et al. v. CLARK et al. HALL et al. v. SAME. |
| Court | West Virginia Supreme Court |
Submitted March 22, 1910.
Syllabus by the Court.
Parties to a suit, accepting the services of an attorney, with knowledge thereof, as the services are performed from time to time, and in the absence of any agreement for gratuitous service, and circumstances from which gratuitous service would be implied in law, are liable therefor.
Acquiescence of persons, jointly interested in a fund in litigation, in the employment of an attorney by one of their number for the protection of their common interest amounts to a representation of agency in the person making such contract which will justify the attorney in making a subsequent contract of employment with the same person for protection of the same fund in litigation, other than that in respect to which he was first employed; the parties having knowledge of the rendition of his service in such subsequent litigation as it is performed, and not disavowing or denying agency of their associate to make such employment.
An attorney, jointly interested with his clients in the fund recovered in a suit, and having such fund in his hands as special receiver by appointment of the court may be allowed a commission thereon as receiver, in the absence of an agreement to handle the fund as such receiver without compensation.
Failure of a special receiver to obey an order directing him to loan funds in his hands, in the absence of any good reason shown for such failure, justifies a charge against him, in his settlement, of an amount equal to the interest he would have received, if he had obeyed the order of the court.
It is not error to allow a special receiver a claim, presented after the report of the commissioner, settling his accounts has been acted upon by the court, but before entry of the decree; the validity of the claim being undisputed, or proved beyond question, and a satisfactory excuse given for not having presented it before the commissioner's report was made up.
Admission of improper testimony by a commissioner in chancery, returned with his report, is not cause for reversal of a decree, if the appellate court finds sufficient admissible evidence to sustain the finding of the commissioner and the trial court as to the item to which the inadmissible evidence relates.
Appeal from Circuit Court, Summers County.
Bills by W. P. Cecil and others, and by J. R. Hall and others, against E. W. Clark and others. From an allowance of certain attorney's fees, W. H. H. Allen and others appeal. Reversed in part, modified in part, and affirmed.
R. F. Dunlap, for appellants.
Price, Smith, Spilman & Clay, for appellee Geo. E. Price, Sp. Receiver.
On the settlement of the accounts of Geo. E. Price, special receiver of the circuit court of Summers county, in the chancery cause of Cecil et al. v. Clark et al. (the decision of an appeal in which is reported in 44 W.Va. 659, 30 S.E. 216, where the general nature of the case can be ascertained), respecting a certain fund accumulated in his hands to the credit of divers persons, adjudicated in said cause to be the owners of a share or portion of the Henley Chapman land, known in some of the proceedings in said cause as the A. A. Chapman interest, questions arose concerning an attorney's fee, interest on a part of the fund, and commissions and other allowances to the receiver, resulting in this appeal.
The attorney's fee of $1,000, paid to the late Wesley Mollohan by the receiver, without an order of the court authorizing him to do so, was allowed to him as a proper credit in his settlement, both by the commissioner to whom the court referred the matter for inquiry, finding, and report, and the court itself, overruling an exception to the commissioner's report. Though Mr. Mollohan rendered the service for which he charged and collected the fee, the allowance thereof to the receiver is resisted by the appellants on the theory or ground of nonemployment by them. Admittedly recipients of the benefit of the services in common with others, they deny liability for the fee. This service was rendered, not in the cause above named, but in a contest in the federal courts between the heirs of A. A. Chapman and the appellants and others similarly situated, who purchased the A. A. Chapman interest in the Henley Chapman lands involved in the main cause, at a judicial sale thereof under a decree of the United States Circuit Court, in a creditor's suit against A. A. Chapman or his heirs.
That purchase was made while the other and principal cause was pending. One W. H. H. Allen was induced by some of the A. A. Chapman heirs to become the purchaser at the price of $2,850. At or about the same time, an agreement was entered into, by which Allen bound himself to pay the firm of Price, Flournoy & Couch 25 per cent. of what should be realized from the purchase, after refunding to Allen his purchase money, in consideration of their conducting "all legal proceedings and litigation in the matter of said purchase and title to said lands, and especially the Flat Top Coal Company suit" then "pending as to said lands, and to render their services through the different courts until there" should be "a final decree as to said title." Then there was an agreement by which Allen was to divide the remaining three-fourths equally with Wm. A. and Geo. B. Wade.
There was a decree in the main suit in favor of the Chapman heirs. Allen, purchaser of an interest therein as aforesaid, filed his petition in that suit, and had that interest decreed to him. The appeal of the trustees of the Flat Top Coal Land Association, disposed of in 44 W.Va. 659, 30 S.E. 216, endangered all these interests, as this court at first reversed the decree, and so denied the Chapman heirs any interest in the land. In view of this peril, Mr. Mollohan was employed on a contingent fee of $3,000, of which $1,000 was to be paid by Allen and his associates, to assist in obtaining a rehearing. The rehearing was granted, and the decree affirmed. But there was further trouble. Part of the heirs of A. A. Chapman then filed a bill of review in the United States Circuit Court, to reverse and annul the decree of sale under which Allen had purchased, and also a petition in the circuit court of Summers county, denying the validity of that purchase. Mr. Mollohan went right on into the successful defense of the bill of review and petition of the Chapman heirs against Allen, separate and distinct matters from that in which he was first employed. The disputed fee is for this service. As to the other $1,000, paid in the spring of 1903, there was no controversy.
This allowance is opposed by Allen and the two Wades, who deny all knowledge of intent or purpose upon the part of Mr. Mollohan to make any charge for this service against their interest in the fund. Their contention is that the firm of Price Flournoy & Couch, which later became Price, Flournoy & Smith, if anybody, employed Mr. Mollohan, and ought to pay him out of their share of the fund. In support of this position, they invoke the terms of the original contract, binding said firm to conduct all legal proceedings and litigation concerning the title, and render their services in respect thereto through the different courts to a final decree. Opposed to this is the testimony of Mr. Mollohan to an express verbal agreement with Wade for a contingent fee out of the common fund of not less than $1,000 for his services in the Chapman heirs suit in the federal court. Those heirs, it will be remembered, attacked that sale in two ways and by two proceedings at the same time--by a bill of review in the federal court, and a petition in the state circuit court. Mr. Mollohan says Wade conferred with him as to the place and best method of defense, and was advised that the safer course was to make it to the bill of review in the federal court. This conversation, as well as the service to which it related, was subsequent to the rendition of service by Mr. Mollohan under his first contract. Mr. Wade makes no specific denial of this conversation, but says in a general way he never had any knowledge of the character of the arrangement made with Mr. Mollohan by Price and Flournoy, and was never asked to give his consent to the payment of a second fee until December, 1904. A copy of what purports to be a letter written by Mr. Flournoy to Wade, November 23, 1903, giving such notice, was put in evidence, but the latter denies receipt of it. A memorandum prepared by Mr. Flournoy, and relating to the distribution of the fund or a portion of it, indicates his understanding that such charge was to be made. Mr. Flournoy being dead, this memorandum was put in evidence as bearing upon the question. A letter from W. C. Clephane, attorney for Allen, is relied upon as evidence of notice to the latter of purpose to make the charge. That letter acknowledges receipt of one from Mr. Flournoy, requesting a copy of an agreement between Allen and the Wades, and then adds: "Mr. Allen thoroughly understands the agreement with regard to the retention of Mr. Mollohan, and acquiesces in it." This letter bears date January 19, 1903. Shortly after that date (some time in March, 1903), a distribution of some of the funds realized from the litigation was made, and Mr. Mollohan had not then been paid his first fee. According to the testimony of Wade and Price, that fee was paid in the spring of 1903; Wade saying "in the spring of 1903," and Price "early in 1903." Evidently this correspondence took place in view of the distribution of funds about to be made, and, as Mr. Mollohan's first fee had not then been paid, his retention,...
To continue reading
Request your trial