Hamilton v. Gray

• Citation: 31 A. 315,67 Vt. 233
• Court: United States State Supreme Court of Vermont
• Decision Date: 26 January 1895
• Parties: HAMILTON v. GRAY.

31 A. 315

67 Vt. 233

HAMILTON

v. GRAY.

Supreme Court of Vermont. Orleans.

Jan. 26, 1895.

Exceptions from Orleans county court; Rowell. Judge.

General assumpsit by B. F. Hamilton against J. A. Gray. Pleas, the general issue, payment, and offset. Verdict for the plaintiff, and judgment thereon, and the defendant excepts. Reversed.

Plaintiff's testimony tended to show that he had made a contract with the defendant to collect certain notes, he to receive one-half of what might be collected by way of compensation therefor. Among these notes was the note of one Morey for $112.67. The plaintiff began suit upon this note in the name of the defendant, which Morey resisted upon the ground that the claim was barred by the statute of limitations. Subsequently the defendant settled the case with Morey for $40, and the plaintiff claimed to recover one-half of this sum. He testified that he made no claim in respect to said note, except by virtue of the aforesaid contract. This contract was in writing, and was as follows:

"This is to certify that I have this day put Into the hands of B. F. Hamilton, deputy sheriff, the following notes for collection, which I agree to take one-half of the amount he may get on any or all said notes, and release him from the same; and the said Hamilton is to make no charge to me for collecting them, only the one-half he may collect. Morgan, Vermont, May 29th, 1886. [Then follows a list of 17 claims against different persons, among which is the following]: E. B. Peckham, $9.74; P. Morey, $112.67; Royal Moody, $149.57.

"N. B. The said Hamilton has power from me to settle any of the above notes to the best of his judgment, and I am to take one-half of what he gets, and release him from the same. [Signed] J. A. Gray."

"Received of J. A. Gray the following notes, which I agree to try and collect to the best of my ability, and am to have one-half of all I get on them, and have the power to settle any of them as I think best; and the said Gray hereby agrees to take one-half of what I get, and discharge me from the same. Morgan, Vt, May 29th, 1886. [Signed] B. F. Hamilton."

E. A. Cook, for plaintiff.

Dickerman & Young, for defendant.

TAFT, J. Champerty is an agreement between the owner of a claim and a volunteer that the latter may take the claim and collect it, dividing the proceeds with the owner, if they prevail; the champertor to carry on the suit at his own expense. This doctrine is based upon the ground that no encouragement should be given to litigation by the introduction of a party to enforce those rights which the owners are not disposed to prosecute. The agreement in this case comes fully within the definition above given. The plaintiff took the claims under an agreement with the defendant to divide between them all that could be collected. He was to be at the expense of collecting the claims, making no charge to the defendant for so doing. It is argued by the plaintiff that the subject-matter of a champertous agreement must be a suit, or that one must be in contemplation. Conceding this to be true, we think a suit to enforce the claims fairly within the contemplation of the parties to the agreement. The plaintiff took the claims for collection, and under the agreement he had the right to bring suits, if necessary, to collect the claims; and it is fair to infer that the parties had in mind that in the collection of a large number of evidently poor and some outlawed claims suits would become necessary. A champertous agreement was void at common law, and we think the common law as to champerty is in force in this state. It is applicable to our situation and circumstances, and not repugnant to the laws. R. L. § 680. The subject of champerty has been referred to in several cases in our reports (Danforth v. Streeter, 28 Vt. 490; Gregory v. Gleed, 33 Vt. 405; Dorwin v. Smith, 35 Vt 69); but in none of these cases were the agreements champertous, there being no element of the offense in any of the contracts involved in the litigation. In Dorwin v. Smith the contract was between parties who had a mutual interest in the result of the suit. In Gregory v. Gleed, the contract was a guaranty by an attorney that he would pay the claim, if placed in his hands for collection. In Danforth v. Streeter, Redfield, J., discusses the doctrine to some extent, and says that he is reluctant to believe that the common-law offense of champerty had been adopted as part of the law of this state,...