MERRICK'S EXECUTOR V. GIDDINGS

• Decision Date: 09 November 1885
• Court: U.S. Supreme Court

Merrick's Executor v. Giddings

Argued October 23, 26, 1885

Decided November 9, 1885

115 U.S. 300

N ERROR TO THE SUPREME COURT

OF THE DISTRICT OF COLUMBIA

Syllabus

A state employed two attorneys to collect a claim and agreed to pay them a certain percentage on any amount recovered by suit. They brought a suit and obtained judgment for the state upon the claim. The state employed another person us agent to assist in its collection, and made an agreement with him to pay him a percentage which should cover all attorney's fees already accrued or to be afterwards incurred, and afterwards modified this agreement in respect to the amount which he should receive if contingent fees should have to be paid to any other persons under contracts with them. This agreement and its modification were unknown to the two attorneys first employed by the state. The agent, knowing of the agreement of these attorneys with the state, promised them to hold any fund that he might collect until their fees should be paid by the state. He collected a large amount, and paid most of it over to the state, retaining in his hands, after deducting his own compensation, a sum less than was due to them under their contract with the state. They made a final settlement with the state for this sum in discharge of all their demands against the state. Held that they could not afterwards maintain any action against the agent on his promise to them.

This action was brought by Richard T. Merrick and Thomas J. Durant to recover damages sustained by them in consequence of the violation of an agreement alleged to have been made by the defendant in error in reference to compensation due them for certain legal service rendered in behalf of the State of Texas. The declaration contains a special count and also a common count for money had and received to the use of the plaintiffs. The answer put in issue the existence of the alleged agreement and every material fact averred in the declaration. Although the record contains several bills of exceptions upon plaintiff's offer to introduce evidence, the decisive question is whether the court erred in peremptorily instructing the jury, upon the whole case, to find for the defendant. 1 Mackey 394. Plaintiffs sued out this writ of error. Although the record contained several bills of exceptions upon plaintiff's offer to introduce evidence, the decisive question was whether the court erred in peremptorily instructing the jury upon the whole case to find for the defendant.

After the present writ of error was sued out, each of the

Page 115 U. S. 301

plaintiffs died, and the action has been revived in the name of their respective personal representatives.

The bill of exceptions states that there was evidence tending to make the following case:

In the year 1867, Mr. Merrick, in conjunction with other counsel, was employed by the state to conduct, and they did conduct, legal proceedings for the recovery of certain bonds and coupons, of which at the commencement of the recent civil war she was the holder and owner, but which, pending that conflict, were transferred by a military board of the insurrectionary government of Texas for the purpose of enabling it to carry on war against the United States. These bonds had been received by the state from the United States under and in pursuance of the Act of Congress, approved September 9, 1850, entitled

"An act proposing to the State of Texas the establishment of her northern and western boundaries, the relinquishment by the said State of all territory claimed by her exterior to said boundaries, and of all her claims upon the United States, and to establish a territorial government for New Mexico."

9 Stat. 446, c. 49. At the time of the employment of Mr. Merrick, some of the bonds and coupons so transferred were held in this country by the firm of White & Chiles, while the residue had been sent to England and were there held for others by Droege & Co. and the Manchester Bank.

The suit instituted was by original bill filed in this Court in the name of the state against the firm of White & Chiles and others. By the final decree therein, it was adjudged that the state was entitled to recover the bonds and coupons of which White & Chiles claimed to have become owners under a contract made between them and said military board on January 12, 1865. Texas v. White, 7 Wall. 741, 74 U. S. 742. Subsequently, in 1873, the Governor of Texas employed Mr. Merrick and Mr. Durant to institute, and accordingly they did institute, suit in the Court of Claims for the recovery of the proceeds of such of the bonds and coupons as had been sent to England, their compensation to be twenty percent of what might be recovered by means of that suit. It does not appear what, if anything, was realized by that proceeding.

Page 115 U. S. 302

After the decree in this Court in Texas v. White establishing the invalidity, as to the lawful government of Texas, of the transfer made to White & Chiles, title was asserted by Chiles individually to the bonds and coupons or their proceeds held in England. Of this new claim, based upon a contract which Chiles pretended was made with him alone by said military board, Droege & Co. and the Manchester Bank were formally notified, and such claim and notice constituted the sole impediment in the way of the prompt recognition by that firm and bank of the state's right to receive the bonds and coupons, or their proceeds, so held by them.

In this condition of affairs, the state, on the 2d of June, 1874, entered into a written agreement with J. D. Giddings and the defendant whereby they were constituted agents, to proceed by suit against all persons having claims, adverse to Texas, to all or any part of the bonds transferred by said military board, with authority to compromise those claims upon such terms as the governor of the state should approve. And it was stipulated that the agents should have for their services a contingent fee of ten percent for all sums actually received under their appointment by compromise, and twenty percent on all sums recovered and actually realized by suit, and no more, such

"percents, respectively, to cover all costs and expenses, and attorney's fees, whether accrued heretofore or to be incurred hereafter, so as to give the State of Texas all of the money so to be obtained, save and except the ten percent aforesaid."

The selection of J. D. Giddings and D. C. Giddings as agents of the state was not designed to interfere with the counsel previously employed, for shortly after their appointment the Governor of Texas informed the latter that such agents were to be only their "outside aids" in conducting the litigation.

On the 13th of October, 1874, in consequence of objections made by defendant to the terms of the contract of June 2, 1874, the governor agreed to its modification, as indicated by his endorsement, as follows:

"Whereas apprehensions have been expressed by J. D. and D. C. Giddings that, in consequence of outstanding contracts

Page 115 U. S. 303

heretofore made with other attorneys under which contingent fees are claimed, if said claims are sustained, the said Giddings might become liable to the state for any excess thereof above ten or twenty percent stipulated in the within contract, this endorsement is made for the purpose of declaring that no such liability by the said Giddings in said event was intended or contemplated, and as, under outstanding contracts, as aforesaid, the percent for fees may equal or exceed that stipulated for that purpose in this contract, it is hereby declared that said Giddings shall be paid in that event a reasonable percent of the amount realized by them on compromise, which shall be a just compensation for their services."

Subsequently, in November and December, 1874, Merrick and Durant were employed by the state to institute and conduct further proceedings to remove and avoid the new title and pretension set up by Chiles to the bonds and coupons, or their...