McFadden v. Swinerton

• Decision Date: 29 January 1900
• Citation: 59 P. 816,36 Or. 336
• Parties: McFADDEN v. SWINERTON et al.
• Court: Oregon Supreme Court

59 P. 816

36 Or. 336

McFADDEN v. SWINERTON et al.

Supreme Court of Oregon

January 29, 1900

Appeal from circuit court, Benton county; J.C. Fullerton, Judge.

Interpleader by A.L. McFadden against W.A. Swinerton and others to determine defendants' interests in a fund in plaintiff's hands.From a judgment distributing the fund between defendantsD.R. Vaughn, Samuel Wyatt, C. Sullivan and George F. Eglin, defendants Swinerton and Dickinson appeal.Modified.

The plaintiff herein prays an order directing an interpleader between several defendants to determine conflicting interests touching a fund in his hands.It is alleged that in or about October, 1895, the defendant W.A. Swinerton filed a claim for the sum of $12,794.52 against the Oregon Pacific Railroad Company and the Willamette Valley & Coast Railroad Company in a receivership proceeding wherein the Farmers' Loan &amp Trust Company was plaintiff and the above-named corporations were defendants; that said claim constituted the aggregate of several lesser claims; that a dividend of $1,245.04 was declared thereon; that the defendant Dickinson was the agent and attorney of Swinerton; that plaintiff was also his attorney of record in said cause, and as such attorney received the said dividend from the court; that he applied $124.50 thereof to his own use as his fee for services rendered in securing the allowance of said dividend, and forwarded $400 to Dickinson,. leaving a balance of $720.54 to be disposed of; that each of the defendantsD.R. VaughnSamuel Wyatt, and C. Sullivan claims an interest in said dividend, which, in the aggregate, exceeds the whole amount thereof, and has made demand upon the plaintiff for payment of his respective claim; that Dickinson also claims the whole thereof; that plaintiff is ignorant of the respective rights of the defendants; that there is no collusion between him and either or any of them; that plaintiff has no claim upon said $720.54, is ready and willing, and hereby offers, to deposit the same in court, or deliver it to such person as the court shall direct.This complaint was filed June 11, 1896, and, on the 26th, Dickinson filed his answer.He admits that Swinerton filed the claim in question, and the allowance of the dividend as stated; that he was the attorney for Swinerton, and, as such agent or attorney, employed plaintiff to appear for Swinerton, and represent him in the presentation of such claim, and that he authorized him to draw the dividend.Further answering, he alleges that the plaintiff was entitled to the sum of $60 only, in pursuance of an agreement made with him as the agent and attorney of Swinerton; that Vaughn, being the owner of a large number of claims against the Oregon Pacific Railroad Company aggregating about $8,000, did, on December 2, 1893, for value, assign and set over the same to Swinerton, who, in part consideration therefor, agreed to cause suits to be instituted upon said claims, together with numerous others, he to advance the costs and expenses of such suits, and to receive the same back in the event of recovery or payment of any dividend thereon; that, in pursuance of said agreement, this defendant became the attorney for Swinerton, and afterwards his agent; that certain suits were commenced, and attachments levied therein upon the steamship Willamette Valley while in port at San Francisco, at the instance and request of Vaughn; that said suits were determined adversely to Swinerton, and that the expenses incurred and paid by him exceeded the sum of 10 per cent. upon the gross amount of said claims, and that the amount set forth in the complaint herein is all that Swinerton, or any person for him, has received; that the defendant has no knowledge of any claim of Wyatt or Sullivan, nor has he any information regarding the same, and therefore denies that they have any interest whatever in the fund; that immediately prior to the collection of said moneys by plaintiffthe defendant Swinerton set over his claim thereto, subject to all the terms and conditions under which he held the same, to this defendant, for the purpose of collection and to do any and all things necessary thereto in the premises; that plaintiff had full knowledge of the relations of this defendant to the subject-matter of this action, and acted entirely under his directions and instructions; that plaintiff never had, and has not now, any right whatever to withhold the said money so collected, or any portion thereof, except the $60 attorney fee; and that this defendant is entitled to the remainder thereof, less the $400 heretofore remitted.On July 25, 1896, the court made an order reciting the facts as stated in the complaint, and directing the plaintiff to deposit with the clerk of the court the said sum of $720.54 to the use and benefit of said defendants Swinerton, Dickinson, Vaughn, Wyatt, and Sullivan, as their several interests might thereafter appear and be determined by the court, less $10 clerk's fees paid by him, and that, when he"shall have deposited with said clerk said money, he shall be relieved from further responsibility therefor.And the clerk of said court is hereby authorized and directed to receive from said plaintiff said sum of money, to wit, $710.54, to the use and benefit of said defendants, as their several interests may hereafter appear, and hold the same subject to the further orders of this court."On November 11, 1896, plaintiff filed a reply to the answer of the defendant Dickinson, wherein he denies the allegations touching the $60 fee, or any knowledge of the alleged relations of said defendant to the subject-matter of the action, or that he acted under the directions or instructions of said defendant or any other person in the premises, and alleges that he took the claim for collection in the usual course of business, and that 10 per cent. of the amount recovered is a reasonable fee for his services.The defendant Vaughn filed his answer on December 10, 1896, admitting all and singular the allegations of the complaint, and denying Swinerton's ownership of the claim and the material allegations of Dickinson's answer.For a further defense he sets up that he owned in his own right claims amounting to the sum of $9,215.60 of the aggregate claim presented, and upon which the dividend was allowed; that said claim was wrongfully presented to the referee in the name of Swinerton for allowance, and that neither Swinerton nor Dickinson had at any time any right, title, or interest in or to the same, or in the dividend adjudged thereon; that of the money now in the plaintiff's hands he is the owner of and entitled to the sum of $365; that in the year 1893 or 1894, at the instance of Swinerton and Dickinson, he agreed to place the said aggregate claim of $9,215.60, in conjunction with others against the said Oregon Pacific Railroad Company, with Swinerton, with the express understanding that Swinerton and Dickinson should assist him in collecting the same; that Swinerton was simply to be a representative figurehead, through whom all claims should be represented for collection as a common agent for all concerned, while Dickinson was to assume and perform all legal services in connection therewith, and that Swinerton and Dickinson, in consideration of the assistance to be rendered them in bringing the claims together, agreed to represent and collect the aggregate of said claims without charge or expense to him; that this defendant rendered the assistance in accordance with the agreement; that he allowed Swinerton and Dickinson to nominally control and represent the whole, but retained and held the absolute property in the claims, except only such as belonged to Wyatt and Sullivan, and that the only interest Swinerton and Dickinson ever had therein was simply as agents for the collection of the same in the state of California, and not elsewhere or otherwise, and that they were to make such collections without cost or expense to this defendant; that they failed to collect any portion of said claims in the state of California, and that they presented them in the receivership proceedings in this state without the knowledge or consent of the defendant; and that he has at no time transferred or sold the said claims, or any part thereof, to said Swinerton or Dickinson, nor have they, or either of them, any right, title, claim, or interest in or to any of the said money now in the hands of the plaintiff.Sullivan and Wyatt set up substantially the defense that they intrusted certain moneys with Vaughn for the purchase of claims against the railroad company; that Vaughn purchased a number of them, and took the assignment to himself, but that he had no authority from either of them to assign said claims to any other person, or to negotiate for their collection, and they each claim an interest in said fund.Later on, George F. Eglin intervened, and claimed an interest in the fund.The court below decreed that the fund be distributed between D.R. Vaughn, Samuel Wyatt, C. Sullivan, and George F. Eglin, and the defendants Swinerton and Dickinson appeal.

H.C. Watson, for appellants, Swinerton and Dickinson.

W.S. McFadden, for respondents Vaughn, Sullivan, and Wyatt.

WOLVERTON C.J.(after stating the facts).

It is contended that an interpleader will not lie under the facts developed in the course of the proceedings, because: (1)The plaintiff is himself interested in the controversy by reason of having retained $124.50 out of the original fund coming into his hands as compensation for his services as attorney in its collection, touching which there is a dispute between him and Dickinson; and (2)he is but the agent or attorney for Swinerton, and as such required to account to him regardless of whatever other demands may have been...