Vilas v. Bundy

• Decision Date: 09 January 1900
• Parties: VILAS ET AL. v. BUNDY ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 168

81 N.W. 812

VILAS ET AL.

v.BUNDY ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Syllabus by the Judge.

1. Where there is no ambiguity in the language of a contract as applied to the undisputed facts, it is the province of the court to interpret it; but where the subject-matter of such contract and the circumstances under which it was made may properly be considered in order to correctly determine the meaning the parties gave to its language, and conflicting inferences may reasonably be drawn from such evidence in regard to such meaning, the proper inference should be determined by a jury, and that is true whether the ambiguity springs from uncertainty in the literal sense of the words themselves or from the application of plain words to the facts.

2. Persons holding the legal title to one-half interest in a judgment in trust for others, coupled with a power to control and collect it and divide the proceeds among those interested therein, impliedly possess power to employ attorneys and use all the usual and ordinary means to carry out the purposes of the trust, and to charge the expenses thereof against the fund recovered.

3. An attorney, at his own expense and risk, may employ an assistant to aid him in his professional work for a client, and charge such client with the reasonable value of the entire labor; and that does not militate against the rule that the relation of attorney and client does not imply authority to the former to employ another attorney at the client's expense.

4. If one of two joint plaintiffs employ two attorneys to act jointly in his behalf in the prosecution of a cause, and the other party employ one of such attorneys to act for him, an agreement between the attorneys to put their earnings into a common fund for equal distribution, does not militate against the right of either to charge and collect of his client the full reasonable compensation for the professional labor undertaken by him for such client and performed personally and by the aid of his assistant and subordinate.

5. The relation of attorney and client, where the attorney has general authority over the subject of his employment, implies authority to such attorney to incur such expenses in the professional undertaking as are usual and reasonably necessary, under all the circumstances, to carry out the object of the employment.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Lizzie L. Vilas and others, by guardian, against C. T. Bundy and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Cassoday, C. J., and Dodge, J., dissenting.

Action of trover to recover damages upon the following facts: June 23, 1888, Luther Cain obtained a judgment against the Minneapolis & St. Louis Railway Company for $4,205.28 damages and costs, on a cause of action for a negligent personal injury. Levi M. Vilas, his attorney, performed the necessary services as such, under a contract entitling him to one-half the amount finally recovered. Before anything, subsequent to the entry of judgment, was done, except the issuance of an execution thereon which was returned unsatisfied, Mr. Vilas died and the judgment thereafter remained dormant for nearly five years, it being supposed that it was of little or no value because of the fact that a mortgage, supposed to cover all the judgment debtor's property, was foreclosed about the time such judgment was rendered, but without making Cain a party defendant, and such property thereafter, by judicial proceedings, passed into possession and supposed ownership of a new corporation called the Minneapolis & St. Louis Railroad Company. Soon after the death of Mr. Vilas his administrators obtained from Mr. Cain a paper, evidencing the interest of the estate of the deceased in the judgment, which was worded as follows:

“State of Minnesota, County of Scott. In District Court.

Luther Cain vs. The Minneapolis and St. Louis Railway Company.

Judgment, June 23rd, 1888.

+------------------+
                ¦Damages¦$4,147 00 ¦
                +-------+----------¦
                ¦Costs  ¦58 28     ¦
                +-------+----------¦
                ¦       ¦$4,205 28 ¦
                +------------------+
                

For and in consideration of services rendered by the late Levi M. Vilas, deceased, and such as may be rendered in collection of the amount due, by his administrators, I, Luther Cain, the plaintiff in the action above entitled, do hereby sell, assign and transfer to James W. Lusk, William F. Vilas and Edward P. Vilas, administrators of the estate of Levi M. Vilas, deceased, all of said judgment for costs and one-half the judgment for damages, recovered by me in the district court of Scott county, Minnesota, on the 23rd day of June, 1888, against the Minneapolis & St. Louis Railway Company, being $4,147 damages and $58.28 costs, and do authorize and empower them to proceed to collect the same or so much thereof as may be collectible, to compound, settle and discharge the said judgment, and the whole thereof, but upon condition that the one-half of all the proceeds obtained or collected over and above the costs shall be paid to me. Hereby ratifying and confirming all which said assignees as my attorneys may do by virtue thereof.

Dated May 3rd, 1890. Witness my hand and seal.

Luther Cain. [Seal.]”

In 1894 Mr. Cain wrote to Mr. William F. Vilas, one of the administrators, in regard to the collection of the judgment, but not receiving any reply he employed John B. Fleming, one of the defendants, to investigate the matter for him. Fleming corresponded with Mr. Vilas for a considerable length of time. Many letters passed between the two in regard to the collection of the judgment. During such correspondence Mr. Vilas was informed by Mr. Fleming of all the facts, so far as he could discover the same, regarding the foreclosure of the mortgage and the probabilities of collecting the judgment. On the part of Mr. Vilas many suggestions were made, and Fleming was urged to investigate diligently for the purpose of finding property not covered by the foreclosure title. In answer to a letter written by Fleming, stating that he had employed Mr. C. T. Bundy, one of the defendants, to assist him, Mr. Vilas said that any arrangement made with Bundy at the cost of Cain was all right, but indicated that he, Vilas, represented the interest of the estate in the judgment. The result of the investigation made by defendants was a discovery, as they supposed, of some property of the old railway company not covered by the foreclosure, and they thereupon made due application to the court for the appointment of a receiver in order to secure the application of such property to the payment of the Cain judgment. The petition was in the name of all parties interested in the judgment as plaintiffs, William F. Vilas, E. P. Vilas, and J. W. Lusk, as administrators, being made plaintiffs as representing the interest of the Vilas estate. When matters reached this stage, Mr. William F. Vilas was urged to give sufficient personal attention to the matter to consult with the defendants if the two interests were to go along together. Up to this time, while Mr. Vilas had made many suggestions, all the real labor in regard to collecting the judgment had been done, and all the expenses borne, by the defendants. Cain was a very poor man and not able to advance anything even to pay expenses. Defendants understood from the start that compensation for their work, and expenses as well, was wholly contingent upon collecting the judgment in whole or in part. About the time the action was commenced for a receiver, defendants succeeded in obtaining a consultation with Mr. William F. Vilas and Mr. E. P. Vilas, representing the Vilas interest in the judgment. The consultation on the part of the defendants was by Mr. Bundy. The petition for a receiver, or a copy of it, and other papers material to the case, were present, some having been previously sent to Mr. W. F. Vilas by mail and the balance having been brought to the interview by Mr. Bundy. Mr. Bundy made a full statement of all the facts as he understood them and of the proceedings he deemed advisable in order to collect the judgment. Mr. William F. Vilas expressed gratification with the situation and approved of what had been done up to that time. According to his remembrance of what occurred, the consultation was merely that of lawyers representing friendly interests; and that at the close of it he said to Mr. Bundy, “I think I can rely upon you.” According to Mr. Bundy's version, the consultation was carried on by him as one of the attorneys having charge of a professional matter with parties interested, or their authorized agents by whom such attorneys were employed. He testified that at the close of the interview Mr. Vilas said his political duties would prevent his performing any services in the matter, and that he should rely solely on Mr. Bundy, the language being, “I represent the Vilas heirs. Their interest is the same as Cain's. I believe you will take care of this case properly and I shall rely wholly on you. I will rely entirely on yourself.” Up to the time of this interview the correspondence had been carried on, on the part of the defendants, wholly by Mr. Fleming, but thereafter it was wholly by Mr. Bundy. Many letters passed between Mr. Bundy and Mr. Vilas, the latter being kept posted as to every step in the proceedings till the collection was finally made. During such time the complaint was amended by making the Vilas heirs who were of age parties plaintiff, and those who were under age plaintiffs by a guardian ad litem. That was supposed to be necessary, as it was discovered by Mr. Bundy that the estate had been fully administered and the property assigned to the heirs. During such time, also, two hostile actions were commenced to foreclose mortgages for the purpose of defeating the efforts of defendants to collect the judgment, which actions, to the knowledge of Mr. Vilas, defendants, or Mr. Bundy as counsel with...