Clifton v. Clark

• Decision Date: 14 March 1904
• Citation: 83 Miss. 446,36 So. 251
• Court: Mississippi Supreme Court
• Parties: WILEY H. CLIFTON ET AL., EXECUTORS, v. TURNER CLARK ET AL

36 So. 251

83 Miss. 446

WILEY H. CLIFTON ET AL., EXECUTORS, v. TURNER CLARK ET AL

Supreme Court of Mississippi

March 14, 1904

FROM the chancery court of Lee county. HON. HENRY L. MULDROW Chancellor.

Clark and others, appellees, were complainants in the court below. Clifton and another, executors of the estate of the late Col Jno. A. Blair, deceased, appellants, were defendants there. The original bill in the cause was not controverted, the defendants, Col. Blair's executors, made their answer (which admitted the bill) a cross bill in which they demanded of and from appellees a much larger sum of money than was sued for by the original bill. The facts are stated in the opinion of the court.

Reversed and remanded.

McWillie & Thompson, for appellants.

This case went off in the court below on an erroneous conception the one about to be mentioned, and which (for the sake of the profession and the widows and children of lawyers) we trust will be exploded.

The proposition that the death of one partner, in a copartnership of lawyers, terminates all contracts made by the firm is based (so far as concerns judicial authority) on the case of McGill v. McGill, 59 Ky. (2 Metc.), 258. This seems to be the original source of the idea, if it is not the only American case, announcing the doctrine. We have not found any English case on the subject. The case in 19 Vesey, referred to by the Kentucky court, has no application to the question. Looking to the Kentucky case, McGill v. McGill, supra, we find that it was this: "A law firm was employed to bring a suit, did so and recovered a judgment. Before the collection of the judgment one of the partners (the solvent one) died. The survivor, an insolvent person, collected the judgment and failed to pay the money over to his client. The court decided that the estate of the deceased partner was liable to the client for the fraud of the surviving partner perpetrated after the partnership had been dissolved by the death of the partner whose estate was sued. The opinion of the Kentucky court is distressingly full of pure obita dicta some of the same being manifestly out of harmony with the conclusion reached. In the opinion the expression is used that contracts for the exercise of professional skill are personal, and are dissolved like the firm itself, by either party's death, but the court went on to distinguish ministerial duties arising from such a contract and professional skill to be rendered thereunder, and found that the professional skill had been rendered in that case, the judgment having been obtained before the death of the partner, and that the survivor was empowered to perform the mere ministerial duty of collecting the money, and thereby bind the estate of the deceased partner. If the contract was dissolved by the death of one of the partners, how his estate could be bound by it for anything done after the dissolution is hard to comprehend. It must follow from the logic of the Kentucky decision itself, that the contract was not ipso facto wholly dissolved by the death of the partner.

We advance this as the true view, the reasonable view: By the death of one member of a copartnership of lawyers, the client is given the right to discharge the survivor, and in case he does so, his only liability is to make compensation for services rendered before the death which dissolved the copartnership. The client, however, must elect. If he permit the survivor to proceed with the litigation, without objection, without discharging him, he will be bound upon the original contract of employment to the same extent as he would have been bound had all the parties lived. The case of Dowd v. Troup, 57 Miss. 204, is in line with this idea. Instead of being authority (as the court below and the appellees seem to have thought) for the proposition that Colonel Blair's death ended the contract and terminated Mr. Anderson's connection with the litigation in respect to which it was made, it is only an authority which denied Mr. Anderson's right to exact from his clients, something he did not do, additional compensation to that provided for by the terms of the contract.

Judge Campbell says (57 Miss. 206): "As Troup was willing that Dowd, the survivor of the firm of Sale & Dowd, whom he had employed and paid . . . should fulfill the obligation of Sale & Dowd, it was not allowable for Dowd, who was but discharging his own obligation as a member of the partnership of Sale & Dowd, to claim of Troup any more for services he rendered after the dissolution of the partnership by the death of Sale, than Sale & Dowd could have claimed if they had rendered all the services. The death of Sale entitled Troup (the client) to settle with Sale & Dowd for services rendered, and to employ other counsel; but if Troup was willing that Dowd should stand in the place of Sale & Dowd and go on with the case as if Sale had not died, Dowd had no claim on Troup for additional compensation, unless there was a new contract between them, by the terms of which he was to have such compensation."

How could it be, if the death of one of the partners absolutely dissolved the firm's contracts, that Dowd by going on with the case would be discharging his own obligations? He could have no obligations under a wholly dissolved contract. If a contract be wholly dissolved, its obligations are ended. It will never do, would be contrary to public policy as well as unjust to clients, to adjudge that as a matter of law the contracts of a law partnership are wholly dissolved by the death of one of its members. The surviving partners are not to be released from all obligations to the clients of their firms. Such is not the law; surviving partners in law copartnerships are fully bound by their firm contracts, are just as much bound after as before the death of one of their associates. The full scope of the law on the subject is, as decided in Dowd v. Troup, that the client may settle with the survivor, and perhaps with him as representative of himself and the deceased partner, for services rendered, and thus end the contract. This, however, the complainants did not do. Colonel Blair died Nov. 1, 1898, and nothing whatever was done for more than two months thereafter, when, on January 10, 1899, the pretended new contract was made with Anderson. This contract was not a discharge of Anderson, nor was it the expression of an unwillingness for him to proceed under the old one. It did not impose any obligation on Anderson to which he was not already bound. It neither increased or diminished the compensation which he personally was to receive under the original written contract with Blair & Anderson, as modified by the subsequent verbal understanding between the parties. The real question is, whether the survivor of a law partnership can give away that part of the obligations to the firm which by right and in justice belongs to the estate of his deceased partner. He may have large discretion, but he is surely not empowered to give away that which does not belong to him. If it be said that as survivor he had the legal title to the chose in action, the claim for the fee, we answer that appellee, Clark, Hood & Company, the clients of the firm, knew all the facts, had full knowledge of the rights and equities of Colonel Blair's estate, and that they are not innocent purchasers. They are not purchasers in any sense; they are mere donees, and at the time of the gift they were fully advised that the donor held the subject of the gift in trust, to the extent of two-thirds of it, for others.

But there was no consideration for Anderson's new contract with his clients, it was a nudum pactum, and void. It did not, for it could not, release Clark, Hood & Company from liability to Colonel Blair's estate. There certainly was no consideration for such a release, and if a surviving partner may release, in whole or part, an obligation due his late firm, his contract (if he were to make one) seeking to affect such a release would be void if not supported by a consideration. The clients paid Anderson nothing for the supposed release; they continued him bound by all the obligations which were previously imposed upon him. He performed, by their consent, exactly the service which he was to render under the contract with the partnership. It must be remembered, too, that the relation of attorney and client continuously existed (and Dowd v. Troup, 57 Miss. is authority for this) between Mr. Anderson and Clark, Hood & Company, appellees, from the making of the contract with Blair & Anderson until the litigation in respect to which it was made was ended. There was no break, nor a moment of time when Anderson was not appellees' attorney and they his clients. If, therefore, Anderson had contracted to be paid a larger fee for the identical services, the contract would have been void. LeCatt v. Sallee, 2 Porter (Ala.), 115; s. c., 29 Am. Dec., 249.

In fact, the more one thinks of the contract made by Mr Anderson with his clients, the appellees, after Colonel Blair's death, the more apparent it becomes that said contract is void. Of course, Mr. Anderson is freed from all moral blame; the mistake he made was in supposing that the death of Colonel Blair wholly dissolved the contract made by appellees with the firm. Just here let us suppose a case: suppose Anderson in his new contract had stipulated, not alone for his share of the fees but for the entire fee agreed to be paid by the Blair & Anderson contract, and had made the whole of it payable to himself. If he could stipulate for one sum to be paid him as a fee, without regard to the interest of Blair's estate, he could do so for any other sum. Surely a surviving partner of a law firm cannot by the mere form of rewriting a fee contract, already...