Westmoreland v. Martin

• Decision Date: 24 February 1886
• Citation: 24 S.C. 238
• Parties: WESTMORELAND v. MARTIN.
• Court: South Carolina Supreme Court

24 S.C. 238

WESTMORELAND v. MARTIN.

Supreme Court of South Carolina.

February 24, 1886

1. An attorney's right to fees must, in every case, rest on contract made with the party himself who is charged, or with his representative. No legal claim for compensation can be founded upon services incidentally benefiting a party, other than the employer, as against that party, because of the incidental benefit.

2. Where a plaintiff, claiming a half interest in land, brought action for partition, and the claim was resisted, but finally adjudicated in plaintiff's favor, and the land divided each party getting half, the defendant cannot be charged with any part of the fee due to plaintiff's attorney.

3. This case distinguished from Nimmons v. Stewart , 13 S.C. 446.

Before WALLACE, J., Laurens, June, 1885.

The opinion states the case.

Mr. W. H. Martin , for appellant.

Mr. Geo. Westmoreland , contra.

OPINION

MR. CHIEF JUSTICE SIMPSON.

The plaintiffs filed the complaint below for the partition of a certain tract of land situate in Laurens County, in which they claimed that the plaintiff, Permelia, and the defendant were tenants in common, each being entitled to one-half. The defendant denied this claim. The case was referred to the master to hear and report upon the issues of law and fact involved, who sustained plaintiffs' claim. Upon exceptions to the Circuit Court, the master's report was confirmed, from which there was no appeal. Thereupon, by order, a writ in partition issued, under which the land was divided between the parties, and on motion of plaintiffs' attorney it was then referred to the master, to report a suitable fee for said attorney to be paid by the parties to the suit. The master upon testimony reported $250 as a reasonable fee. The partition was confirmed, and the fee reported was ordered to be paid, one-half each to be paid by plaintiffs and defendant, and in case that either failed, the interest of such failing party in the land to be sold for such payment. From this order the defendant has appealed, contesting the ruling of the judge as to the fee.

The appellant's counsel correctly states the general rule on this subject, to wit, that counsel fees must depend upon the contract of the parties. Under this rule attorneys must ordinarily look to their clients for compensation-to those who directly employed them. The courts, however, have sometimes decreed counsel fees to attorneys not employed by the party himself subjected to the fee, but by one whom the law regards as the representative of such party, and consequently, authorized to contract for him. Thus, attorneys' fees must in every case rest on contract made by the party charged himself, or by his representative. We mean the right to fees, the amount, in the absence of a sum agreed upon, of course depending upon labor and services rendered. Thus it...