Davis v. Webber

• Decision Date: 11 February 1899
• Citation: 49 S.W. 822,66 Ark. 190
• Parties: DAVIS v. WEBBER
• Court: Arkansas Supreme Court

49 S.W. 822

66 Ark. 190

DAVIS v. WEBBER

Supreme Court of Arkansas

February 11, 1899

Appeal from Miller Circuit Court in Chancery RUFUS D. HEARN, Judge.

Decree reversed and cause remanded.

Williams & Arnold, for appellant.

The rights of an attorney must not conflict with the interests of his client. Weeks, Attys. §§ 258, 271; 57 Ark. 93; 9 F. 721. Dealings between attorney and client are scrutinized closely, and the onus is upon the attorney to show fairness. Weeks, Attys. §§ 268, 273, 276, 277; 1 Am. & Eng. Enc. Law (2 Ed.), 333; Story, Eq. §§ 310, 311; 5 Johns. Ch. 48; 7 A. 842. The contract that appellee should have the penalty as his fee is void. Weeks Attys. 724, 725; 49 N.E. 222. The agreement that the client would not compromise without the consent of the attorney was void, as against public policy. Greenhood, Pub. Pol. 774; 25 Ia. 487; 21 Ia. 523; 15 Ohio 715. The opinions of witnesses as to reasonableness of fees, while merely advisory, should be considered in connection with the other facts in the case. 33 S.W. 777; Weeks, Attys. 697. Even if the contract was valid, the purpose having failed, recovery could not be had on its terms, but only on a quatum meruit. 23 S.W. 790; 22 S.W. 85; 92 Ill. 491; Weeks, Attys. 699; 1 Am. & Eng. Enc. Law (2 Ed.), 427; 8 Misc. (N. Y.) 533; 73 Md. 9; 7 W.Va. 202; 59 Barb. 574; 41 N.Y.S. Ct. 452; 28 S.W. 227; 20 A. 127; 33 Ark. 545. Contract is to be construed in the light of surrounding circumstances. 22 S.W. 85; 29 N.W. 838; 107 U.S 442; 95 U.S. 23; 22 Wall. 111. A set-off can not be pleaded against a set-off. 22 Am. & Eng. Enc. Law, 236.

S. R. & Ashley Cockrill, for appellee.

The contingent character of the fee did not make the contract void for champerty. 17 Ark. 609, 663, et seq.; 33 Ark. 545. Appellant has an interest in the judgment, to the extent of the fee contracted for. Sand. & H. Dig. § 4223; 38 Ark 385; 49 Ark. 86, 95; 36 Ark. 591. Even it the contract were void, the court could look to it for the purpose of ascertaining what the parties deemed a reasonable fee. 125 Ind. 359, 361; 36 Minn. 473; 26 N.Y. 279. The amount awarded should be allowed to stand, even on the basis of quantum meruit, all the facts being, considered. 1 Laws. R. & Rem. § 198; 44 Ark. 279; 33 Ark. 548. The contract was valid. 33 Ark. 545; 39 Ark. 340. Appellant's acquiescence estops him to deny his liability. 21 Ark. 420. A defective complaint will be treated as amended to conform to evidence introduced without objection. 54 Ark. 289; 59 Ark. 215; 53 Ark. 263; 24 Ark. 326; 57 F. 693. On appeal the presumption is that the irregularity of the pleading was waived. 39 Minn. 365; 51 Minn. 162.

WOOD J. BUNN, C. J., dissenting.

OPINION

WOOD, J.

This is a suit by Webber against Davis to recover the sum of $ 2,885.50 for services, as an attorney at law, under a certain contract, and to declare and enforce a lien for such sums upon certain property. The contract is as follows: "Whereas, by the judgment of the of the Miller county circuit court in the case of Mansur v. Tebbetts Implement Co., and Hargadine-McKittrick Dry Goods Co. v. Robt. Ellis, in which N. L. Davis was interpleader, the proceeds of the sale of the stock of goods bought from said Ellis by said Davis was adjudged to be the property of N. L. Davis, and ordered to be immediately turned over to him by A. S. Blythe, sheriff, and a similar order, was issued by the Hempstead circuit court on the other attachments against Ellis, taken to that county on a change of venue; and demand having been made on said sheriff, and he failing to pay the same, it becomes necessary to proceed against him on his official bond, and the said Davis having employed the said T. E. Webber for that purpose: Now, therefore, it is agreed and understood, by and between the said T. E. Webber and the said N. L. Davis, that T. E. Webber is to have, as fees for his services as attorney therein, the 10 per cent. per month affixed by the statute as penalty in such default, and that N. L. Davis is to make no settlement with said sheriff, or said bondsmen, or either of them, without the assent of the said T. E. Webber. In the event a proposition of settlement or compromise is submitted, either by the said sheriff and his bondsmen, or by the said T. E. Webber and N. L. Davis, or either of them, the same is not to be accepted unless agreed to by both T. E. Webber and N. L. Davis, and in such proposition, so mutually agreed to, such allowance shall be made for T. E. Webber's attorney's fees as may be agreed upon by said Webber and said N. L. Davis, or else said proposition shall be rejected. Witness our hands this 30th day of April, 1894, to this agreement, which is separate and distinct from and in no wise affects or impairs any agreement heretofore entered into as to attorney's fees on the interpleas filed for N. L. Davis in said cause.

[Signed]

"N. L. DAVIS.

"T. E. WEBBER."

The amount which the sheriff was ordered to pay Davis was $ 7,114.50. The sheriff failing to pay said amount upon the demand of Davis, Webber was employed, as indicated supra, to proceed against the sheriff and his bondsmen to collect the money. Accordingly, Webber, as attorney for Davis, instituted proceedings against the sheriff and his sureties by motion for summary judgment, and on September 14, 1894, obtained judgment against them for $ 7,034.50, the amount sued for, less the taxes which the sheriff had paid. The judgment was also for interest at the rate of 6 per cent. per annum, and 10 per cent. per month penalty, on the above amount from April 23, 1894, until paid. It was provided in the judgment that the amount of principal, interest and penalty should not exceed $ 10,000, the amount of the sheriff's bond. The principal, interest and penalty would have exceeded $ 10,000 at the time the judgment was rendered. So the judgment obtained by Davis against the sheriff and his bondsmen was for $ 10,000, and the amount due Webber of said judgment under the contract with Davis was something over $ 2,800. Webber filed his lien upon said judgment March 21, 1895. In April thereafter Davis accepted of the sheriff and his sureties certain notes and real estate in satisfaction of the judgment against them. This was done without the payment of Webber's fee, and, as he claims, without his consent; hence this suit.

Several defenses were presented. The only ones we need consider are: First, that the contract was void; second, that there can be no recovery except upon a quantum meruit, and, in that case, Davis contends, the decree for $ 1,997.05, was excessive.

1. Was the contract void? Long ago (1857) this court, in an elaborate and learned opinion by Mr. Justice Scott, traced the origin, and reviewed the history, of the law of maintenance and champerty, as enacted into statutes and declared by the courts of England. Lytle v. State, 17 Ark. 608, 663, et seq. The conclusion reached was that such laws were not applicable to contracts between attorney and client providing remuneration to the attorney for services rendered his client in conducting litigation. The English rule avoiding such contracts upon the ground of maintenance and champerty was repudiated, as repugnant to our constitution and statutes, and the court showed, and might have added, that such a rule was contrary to the genius of our institutions. As was said by Mr. Justice Cobb in Newman v. Washington, Mart. & Yerg. (Tenn.) 79: "It is consonant with the nature of our institutions that faithful labors should be rewarded by reasonable remuneration, and he who works at the bar, and he who works at the plane, the physician, the farrier, the carpenter, and the smith, should all possess an equality of rights, and be paid what they reasonably deserve to have, according to the nature and value of their respective services." And he continues: "Here we have no separate orders in society, none of those exclusive privileges which distinguish the lawyer in England, in order to attach him to the existing government, and which constitutes him a sort of noble in the land. * * * But, upon the whole, a lawyer in England is as different from a lawyer here as a man clad in a plain suit of black or blue--his head such as nature made it--is unlike him in appearance who has his body surrounded with a long robe and his head covered with a large wig." As was said by Chief Justice Gibson in Foster v. Jack, 4 Watts 334 "The dignity of the robe, instead of any principle of policy furnishes all the arguments that can be brought to support' the English rule. Kennedy v. Broun, 7 L.T.R. 626, 9 Jur. (N. S.) 119.

More than once since the decision in Lytle v. State, supra, this court has recognized the validity of contracts between attorney and client, allowing the former a contingent interest in the subject-matter of litigation as compensation for his professional services. Brodie v. Watkins, 33 Ark. 545; Jacks v. Thweatt, 39 Ark. 340; Cockrill v. Sanders, 8 S.W. 831.

We are aware that some American courts of eminent respectability have approved the English rule concerning such contracts. Miles v. Collins, 1 Metc. (Ky.) 308; Dumas v. Smith, 17 Ala. 305; Price v. Carney, 75 Ala. 546. But see Coquillard v. Bearss, 21 Ind. 479; Orr v. Tanner, 12 R.I. 94. Gilman v. Jones, 87 Ala. 691, 5 So. 785, for the doctrine now in Alabama.

But the modern, and decidedly prevailing, view in this country is in accord with the rule adopted by this court, to uphold such contracts. See cases collected in 5 Am. & Eng. Enc. Law (2 Ed.), 826, and in note to Kennedy v. Broun, 2 Am. Law. Reg. (1862-3) p. 372.

Such contracts, however, should be characterized by the utmost good faith on the part of an attorney towards his client because of the confidence reposed in him. The courts will...