Freeman v. Shreve

• Decision Date: 04 February 1878
• Citation: 86 Pa. 135
• Parties: Freeman and Wife <I>versus</I> Shreve.
• Court: Pennsylvania Supreme Court

86 Pa. 135

Freeman and Wife versus Shreve.

Supreme Court of Pennsylvania.

January 21, 1878.

February 4, 1878.

January 21st 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 211.

COPYRIGHT MATERIAL OMITTED

Benjamin Harris Brewster and George L. Crawford, for plaintiffs in error.—The charge of the court took from the jury the question of fact which Mr. Freeman testified that his bargain for $5000 was to include all the services of the plaintiff in the case, whether rendered to the general fund or his client in particular, and that the defendants were to have the benefit of any allowance that could be obtained from the chancellor in relief of it. It is obvious that any chancellor would, in making such allowances, if informed that one of the litigating parties had so provided for compensation of their active counsel in the case, have equitably adjusted the general burden, the remaining distributees having made no such provision for their counsel. And there was a want of that uberrimæ fidæ required of counsel in the plaintiff not disclosing this to the chancellor, to at least obtain the benefit of the point before him, and in not disclosing to his clients the application of himself and the other counsel for the $12,500 fees allowed by their united action, without objection, that his clients might have their objections thereto presented and passed upon by the chancellor.

Henry C. Titus, for defendant in error.—The jury found that Mrs. Freeman was not entitled to this allowance by virtue of any contract between the parties; and apart from such a contract she could not claim it by law, for the chancellor could not pay for private services out of the general estate.

It is customary for the Court of Chancery to allow fees to the counsel of all parties out of the whole estate, to be taxed as part of the costs: Whitenack v. Stryker, 1 Green's Ch. (N. J.) 29; Re Will of Henry Vanderveer, 5 C. E. Green 463; Harris v. Vanderveer, 6 Id. 568.

An agreement made between an attorney and his client, the party to a suit, that the attorney shall prosecute or defend for a fixed sum, does not affect the right of the attorney to recover a larger amount as his taxable costs from the adverse party: Phœnix v. Romer, 1 Edwards's Sel. Cas. 353.

Mr. Justice SHARSWOOD delivered the opinion of the court, February 4th 1878.

It is undisputed and indisputable from the testimony of the plaintiff below himself that he was retained by Mr. Freeman, on behalf of his wife, "to secure the safe custody of the estate of Isaac Brown Parker and his wife's interest, and take it out of the hands of John Brown Parker. He (Mr. Freeman) said, `If you will do that we will give you $5000.'" This, then, was the contract on the plaintiff's own showing. All the services which he could or did render to the estate were clearly within the scope of his duty under this undertaking. Had he failed in taking any steps which were necessary to secure the general fund, he would have been derelict in his duty, and responsible to Mrs. Freeman and nobody else for any loss which she might sustain by his neglect. He would not have been responsible to the other claimants upon the fund, for he owed them no duty. He could...