Josephine Gowan v. Emily Parish

• Decision Date: 12 April 1915
• Docket Number: No. 150,150
• Citation: 35 S.Ct. 543,237 U.S. 285,59 L.Ed. 955
• Parties: JOSEPHINE P. McGOWAN, Executrix of Jonas H. McGowan, Deceased, and Elijah V. Brookshire, Appts., v. EMILY E. PARISH, Executrix of Joseph W. Parish, Deceased
• Court: U.S. Supreme Court

237 U.S. 285

35 S.Ct. 543

59 L.Ed. 955

JOSEPHINE P. McGOWAN, Executrix of Jonas H. McGowan, Deceased, and Elijah V. Brookshire, Appts.,

v EMILY E. PARISH, Executrix of Joseph W. Parish, Deceased.

No. 150.

Argued January 25 and 26, 1915.

Decided April 12, 1915.

Messrs. J. J. Darlington, Clarence R. Wilson, and Nathaniel Wilson for appellants.

Messrs. Leigh Robinson and Holmes Conrad for appellee.

Mr. Justice Pitney delivered the opinion of the court:

This is an equity suit that was commenced in the supreme court of the District of Columbia by Jonas H. McGowan and Elijah V. Brookshire, as complainants, against appellee as executrix of Joseph W. Parish, deceased, together with the Secretary of the Treasury and the Treasurer of the United States, as defendants, in May, 1909, shortly after the decision by this court of the case of United States ex rel. Parish v. MacVeagh, 214 U. S. 124, 53 L. ed. 936, 29 Sup. Ct. Rep. 556, and at a time when, pursuant to that decision, a mandate was about to be issued that would have resulted in paying to appellee, as executrix, the sum of $181,358.95, the amount found by the auditor for the War Department to be due to Joseph W. Parish in his lifetime upon his claim against the government, known as the 'ice claim,' mentioned in the opinion of this court in the case just referred to. The object of the suit was to establish and enforce a lien upon the fund for services rendered in the prosecution of the claim. That claim had long been before the courts and Congress (Parish v. United States, 12 Ct. Cl. 609, 100 U. S. 500, 25 L. ed. 763; 16 Ct. Cl. 642; act Feb. 20, 1886, 24 Stat. at L. 653, chap. 11), when, on August 4, 1900, an agreement in writing was made between Parish and McGowan whereby the former employed the latter as his attorney to prosecute and collect it, agreeing, 'in consideration of the professional services rendered and to be rendered by the party of the second part [McGowan], and others whom he may employ in the prosecution of said claim,' that he, Parish, would pay to McGowan a fee equal in amount to 15 per centum of whatever might be awarded or collected. McGowan was thereby given control of the prosecution of the claim to its final determination, with power to receive and receipt for any draft or other evidence of indebtedness that might be issued in payment of it, and to retain from the proceeds the amount of the stipulated fee; Parish was to furnish the evidence required and to execute from time to time and deliver to McGowan powers of attorney or other papers necessary for the prosecution and collection of the claim and the payment of the fee; Parish agreed that he would not assign or otherwise dispose of the claim, and that the agreement should not be vacated by any revocation of the authority granted to McGowan, 'nor by any services rendered or which may be rendered by others or by the party of the first part [Parish], his heirs or legal representatives, or any of them;' and McGowan agreed to diligently prosecute the claim to the best of his professional ability to its final determination.

McGowan was a lawyer engaged in practice in the District of Columbia, and after the contract was made, he rendered professional services under it, before Congress and otherwise. In December, 1902, McGowan and Parish, being desirous of securing the services of the complainant Elijah V. Brookshire as attorney in co-operation with McGowan, the latter made an agreement with Brookshire giving him an undivided one-third interest in the contract of August 4, 1900, the purpose being to give him 5 per cent of whatever amount should be awarded or collected upon the claim. A short time after this, Parish and Brookshire entered into a written agreement between themselves, by which the former agreed that he would pay to the latter an additional 5 per cent of the amount awarded or appropriated, and that Brookshire should have a lien for the amount due him upon the award when made; and Brookshire agreed to render necessary and proper legal services in the prosecution of the claim under the direction of Parish.

Thereafter McGowan and Brookshire cooperated, and unquestionably rendered services of value. Through their instrumentality, Congress was induced to pass the act of February 17, 1903 (32 Stat. at L. 1612, chap. 559), referring the claim to the Secretary of the Treasury for examination and the payment of any balance found due to Parish under the rule of damages laid down by this court in United States v. Behan, 110 U. S. 338, 28 L. ed. 168, 4 Sup. Ct. Rep. 81, after deducting payments already made. Thereafter, the Secretary of the Treasury referred it to the auditor for the War Department, who, on August 11, 1903, made a finding that there was a balance of $181,358.95 due to Parish, and notified him through McGowan. The Secretary, however, did not accept this finding, but made further investigation, with the result that on May 31, 1904, having concluded that under the rule in the Behan Case, and upon the evidence, no balance was due to Parish, he decided to refuse to pay the amount ascertained by the auditor, or any sum. Shortly after this, friction and disagreements developed between Parish and the attorneys respecting the next steps to be taken, and they continued until Parish's death, which occurred on December 26, 1904, at his residence in the city of Washington. No active steps were taken, during this period, towards pressing the claim. Parish left a will, but no estate other than the claim. His daughter, Emily E. Parish, proved the will and qualified as executrix thereunder, and in the year 1905 she employed other counsel, through whom, in May, 1906, she filed in the supreme court of the District of Columbia a petition for a mandamus against the Secretary of the Treasury to require him to issue a draft in her favor for the amount of the award of the auditor for the War Department. That court dismissed the petition, and the court of appeals of the District of Columbia affirmed its action. 30 App. D. C. 45. But this court, in the case first above mentioned, reversed this judgment, and remanded the cause with directions looking to the allowance of the mandamus.

At this point, as already mentioned, McGowan and Brookshire filed the present bill of complaint against the executrix, joining the Secretary of the Treasury and the Treasurer of the United States as parties defendant. The bill set up the several contracts made between Parish and McGowan, between McGowan and Brookshire, and between Parish and Brookshire, respectively; set forth the services performed by complainants under those contracts, and the results of those services, including the passage of the act of February 17, 1903, the finding of the auditor for the War Department, ascertaining a balance of $181,358.95 due to Parish, and the adverse decision of the Secretary of the Treasury; the subsequent death of Parish; the probate of his will by Emily E. Parish, his executrix, and the proceedings taken by her in the courts. It also alleged that during Joseph W. Parish's lifetime complainants had advanced money to him for the benefit of himself and his family in sums aggregating $5,000, relying solely upon his promise to repay the loans out of what might be recovered in respect of the claim; that except for that claim he died insolvent, and was indebted in amounts aggregating about $25,000; that the defendant, Emily E Parish, and her brother, Grant Parish, had avowed and declared that complainants should never receive any part of the money realized upon the claim, and that they were both insolvent, and if they should receive into their hands the draft about to be issued by the Secretary of the Treasury they would immediately take it out of the jurisdiction of the court for the purpose of defrauding and defeating complainants of their rightful lien and claim on the fund; and that complainants were severally the equitable owners of one-tenth part of said sum of $181,358.95, and entitled to a lien upon the award and finding in respect of that part. The prayers were, in substance, that each of the complainants should be decreed to be the equitable owner of and entitled to one-tenth part of the amount of the award; that the executrix, the Secretary of the Treasury, and the Treasurer of the United States should be enjoined from receiving or paying over the amount of the award to the detriment of complainants' interests; that a receiver should be appointed to collect the money from the United States and hold it subject to the order of the court; and for general relief. The bill was filed on May 22, 1909, and on the same day a restraining order was made enjoining the executrix from receiving, and the officers of the government from paying, the amount of the award. On June 2, with the consent of the respective solicitors for the complainants and the defendant, Emily E. Parish, executrix, an interlocutory decree was made, dissolving the restraining order and dismissing the bill of complaint as against the Secretary of the Treasury and the Treasurer of the United States, and also dissolving the restraint as against the executrix; 'provided, however, and it is adjudged that in respect of the sum of forty-one thousand dollars, and in respect of any warrant, draft, or check that may be issued therefor by the Treasury Department, or any officer thereof, as being a part of the award or finding,' etc., the executrix was thereby directed to make a proper power of attorney authorizing the vice president of the American Surety & Trust Company to receive the warrant, draft, or check, indorse it in her name as executrix of Joseph W. Parish, deceased, collect the proceeds, and deposit them with the Trust Company 'to the credit of this cause and subject to the further order of this court herein, and subject to the determination by this court in this cause whether any amount and, if so, what amount, is justly due the complainants, or...