Dorr v. Camden.

• Decision Date: 08 March 1904
• Court: West Virginia Supreme Court
• Parties: Dorr v. Camden.

55 W.Va. 226

Dorr

v.Camden.

Supreme Court of Appeals of West Virginia.

Submitted February 24, 1904

Decided March 8, 1904.

1. Agency Information Acquired During.

Neither agents or sub-agents nor attorneys nor assistants thereto, can withhold from principal or client information acquired by them in the exercise of such agency or attorneyship, and use the same to extort an increased compensation from such principal or client, or coerce such principal or client into a contract he would not enter into upon full information, (p. 229).

2. Contingent Fee What Necessary to Sustain.

To sustain a contingent fee it must be shown that no unfair advantage was taken of his client by the attorney, but that the same was entered into by the client after full knowledge of the facts and circumstances for legal services of skill, judgment and ability of a character to justify a contract for such contingent fee. Ordinary services requiring no legal ability is not a sufficient consideration for such fee, wholly disproportionate thereto (p. 231).

3. Contingent Fee Compensation for Services.

When the services rendered are not of such character as to furnish consideration for a contract for a contingent fee, unfairly obtained from a client, the attorney may recover for the value of his actual services rendered his client upon pleadings and proofs justifying such recoverv (p. 232.)

4. New TRial When Proper to Grant.

When the court has improperly instructed the jury as to the law governing the facts as shown in evidence, a verdict in accordance with such instructions should, on motion of the prejudiced party, be promptly set aside, and a new trial granted, (p. 234).

Error to Circuit Court, Wood County.

Action by C. P. Dorr against J. X. Carnden. Judgment for defendant. Plaintiff brings error.

A ffirmed.

Van Winkle & Ambler, S. V. Woods, W. E. Haymond, and John F. Holt, for plaintiff in error.

George E. Price, for defendant in error. Dent, Judge:

C. P. Dorr, plaintiff, complains of the judgment of the circuit court of Wood County bearing date on the 12th of January, 1903, in favor of Johnson N. Camden, defendant, setting aside the verdict of a jury in favor of the plaintiff for the sum of $15,972.61 and granting the defendant a new trial. The gist of the action is stated in the declaration as follows, to-wit:

"And for this also, that heretofore, to-wit, on the--

day of, 1890, the said defendant claiming a right

to certain lands, the legal title to which was in one William S. Dewing, which lands lie in the counties of Greenbrier, Nicholas and Webster, in the State of West Virginia, and lying within the boundaries of certain lands known as the Caperton lands, and the said plaintiff then and there, being an attorney at law duly licensed and practicing under the laws of West Virginia, having a knowledge of the facts and circumstances connected with the transactions as to said land, and the rights thereto, which were of value to said defendant, the said defendant then agreed with the plaintiff that he, the plaintiff, should furnish him the said information, and certain assistance in proceeding for the recovery of the said land, to-wit, should furnish the said defendant information of certain facts which were necessary in the preparation of the proper pleadings in such proceeding, and information as to obtaining the proof necessary in such proceeding, and that he, the said defendant, would pay the said plaintiff the sum of one dollar per acre for every acre that he, defendant, should recover of the said land, and he, the defendant, then and there faithfully promised the plaintiff io pay him the said sum of one dollar per acre for'every acre so recovered, in consideration of the said assistance and information."

This undoubtedly shows a good cause of action free from maintenance or champerty. Tt is for compensation for services to be rendered, and for information to be given in support of, defendant's suit to be contingent upon and measured by the extent of defendant's final recovery, and if plaintiff had sustained it by proof limited to such allegations, his right of recovery would have been unquestionable. He was to have no share or portion in the thing to be recovered, but his compensation was to be in proportion to the extent thereof. And it must be viewed as alleging in effect a contract between an attorney and his client for a fee contingent in amount on the extent of the recovery. Anderson v. Conaway, 27 W. Va. 385.

This action is a sequence to the suit of 0. P. Dorr v. Dewing & Sons, 36 W. Va 466; Dewing & Sons y, Hutton, 40 W. Va. 578; Button v. Dewing & Sons, 12 W. Va. 691; Dewing & Sons v. Button, 48 W. Va. 576, and Camden v. Dewing & Sons, 47 Id. 310. The principal actors in all this comedy of errors, of which this seems to be the last scene or postlude, are A. H. Winchester, Elihn 11 niton. Bernard J. Butcher and C.P. Dorr, plaintiff, acting as attorneys and agents for Dewing & Sons, and Johnson N". Camden, defendant. A. H. Winchester was the confidential and secret agent of Dewing & Sons, of Kalamazoo, Michigan, sent into the State of West Virginia to buy timber lands for his principals. When it came to purchasing what is known as the Gauley lands he took into partnership with him Elihu Hutton and Bernard L. Butcher. This partnership finding Mr. Camden, the defendant, engaged in taking options upon and acquiring lands in the Gauley region, where they designed to make their purchases, entered into a contract with the defendant, for the purpose of avoiding competition, and securing their lands at a very low rate, that if he would turn over to them his options and abandon the region to them that they would purchase for him. certain large tracts of land containing 13, 366 acres now involved in the suit, and lying within what is known as the "Caperton Survey," and charge him therefor only the actual price and expense of obtaining the same. Mr. Winchester employed the plaintiff as attorney and agent to assist in buying and securing the title to these lands, both for the partnership and for the defendant. He was fully aware that these lands were being purchased for the defendant. The defendant faithfully complied with his contract and the partnership by reason thereof, with the aid and assistance of their attorney, the plaintiff, were enabled to purchase in this Gauley region about fiftyrive thousand acres of land, including defendant's at a little more than one dollar per acre. Excluding their purchases for defendant, they amounted to over forty thousand acres. After these purchases were completed, Butcher having withdrawn from the partnership, Dewing & Sons take the place of Winchester, pay the purchase money for these lands, and then buy out Hutton by agreeing to pay him the rate of fifty cents per acre. William S. Dewing acting in behalf of Dewing & Sons, agreed to take the place of Winchester and to carry out all agreements, contracts and understandings in good faith, of the former partnership. Having purchased Hutton's interest, Dew- ing & Sors insisted that all these lands should he conveyed to them and that they would hold the defendant's lands in trust for him, and to be conveyed to him on payment of the purchase money and expenses. The plaintiff not having been paid for his services in full by Winchester, sued Dewing & Sons for the balance due him and obtained a decree therefor amounting to $7,100.00, which decree was affirmed by this Court, The defendant, not having received his portion of the lands according to his contract, and having learned that the title thereto had been invested in Dewing & Sons, demanded the same from Dewing & Sons and they refusing to convey the same, was preparing to institute suit to enforce the contract between himself and Winchester, Button and Butcher, and of which they and Dewing & Sons, had received the full benefit, enabling them to make thousands of dollars that they might not otherwise have made.

The plaintiff, being employed by Winchester, Hutton and Butcher, to assist them as agent and attorney in carrying out their contract with and for the defendant, and having received a handsome compensation for his services in behalf of the defendant, approached the defendant in company with Mr. Hutton, and proposed to the defendant, to use his own language: "If you will give me two dollars an acre, I will see that you get the facts sufficient to recover this land," meaning the land that he had assisted Mr. Winchester, Mr. Hutton and Mr. Butcher, in acquiring for the defendant and for which service he had been paid by Dewing & Sons. According to the plaintiff's testimony, the defendant replied to this proposition: "Other people are interested with me and I would have to pay the purchase money, and I will give you one dollar an acre for all the land I will recover in a case of that kind." He says: "I will take it." Plaintiff then told Mr. Hutton in defendant's presence, that he would give him one-half the amount if he woulel aid him, to which Mr. Hutton assented. This is the contract on which this suit is brought. It is simply an agreement by an attorney to furnish the facts to secure a recovery, provided he receives compensation proportionate to such recovery. It is, in other words, a proposition by defendant's agent and attorney to furnish him information that this agent and attorney had acquired while acting as his agent in procuring these same lands for him, and for which he had received full compensation but which had not vested according to contract, such information to be used in completing such contract, according to the true tenor and affect thereof.

This proposition is innocent enough in itself, but it has no consideration to support it. This information possessed by his agents and acquired by them in complying with this very contract, belonged to the defendant as a matter of law, and these agents had no right to charge him therefor, or make merchandise thereof at his expense. It may be...