McKee v. Latrobe/Opinion of the Court

This is another one of the claims made under the trust expressed in the McKee contract, 'to adjust the claims of all parties who have rendered service heretofore in the prosecution of said claim, upon the principle of equity and justice, according to the value of the services so rendered.' McKee's argument in this connection is that this was a personal agreement and obligation of himself and Blunt with the Choctaw Nation, was not for the benefit of Latrobe, vested in no one any interest in the money which might become payable under that contract, and was not an assignment or dedication of any part of the money which they might receive from the Choctaw Nation in consideration of the performance by them of their contract; in other words, that it was a contract of indemnity, by which McKee undertook to save the Choctaw Nation harmless from any claim that should be made for services that had been theretofore rendered by other agents and attorneys. We do not so read it. A trust so plainly declared would be of no avail, if the class of persons who are described therein could not take advantage of it. It was not needed to indemnify the Choctaws, since no possible action could lie against them after the contract had been abandoned by Black. It was evidently intended to satisfy any moral obligation for services which had been performed, but not completed, and to throw the burden of adjusting and paying them upon McKee.

His theory, too, is inconsistent with his repeated statements to leading members of the Choctaw council, whose affidavits, received in the place of depositions, show that he declared to the leading authorities of the Nation that he considered himself obligated under his contract to pay all outstanding obligations to persons for the services rendered in the prosecution of the claim prior to his own contract. In addition to that, and in corroboration of his own statements, he exhibited a letter written by his own attorney, and by his direction, to Leflore, in which he stated that: 'So far as I know, or have ever heard, every lawyer who has ever rendered service, or pretends to have rendered service, in regard to the net proceeds claim, expects to get his pay out of the thirty percent., and to get it through McKee. For myself, I expect to be paid by Mr. McKee out of his thirty per cent. I have no claim against the Choctaw Nation if Mr. McKee's thirty per cent. is paid, even if he should not pay me; but of this I have not the slightest doubt. McKee's contract requires him to stand between the Choctaws and their attorneys who have rendered service. He would be liable to suit in the courts, here and elsewhere, wherever he could be found, if he should neglect or fail to carry out his agreement with the Choctaws to settle and adjust the claims of other attorneys who have rendered service, upon principles of equity and justice. The Choctaws would not be liable to any such suit anywhere.' Here follows a list of parties who had rendered service in the prosecution of the claim, among which is the name of John H. B. Latrobe, with the statement that 'he looks to Mr. McPherson, executor of Mr. Cochrane, for his fee. Whatever sum Mr. Latrobe or Mr. Cochrane gets comes out of McKee's thirty per cent.' McKee's prompt repudiation of this promise, and his vigorous defense to all these claims, argues either a serious impairment of memory with reference to the transaction, or a deliberately dishonest purpose.

The services of Mr. Latrobe in this connection seem to have had their origin in a visit made by the Choctaw delegation on their way to Washington at Latrobe's residence in Baltimore. It seems they expressed to him the fear that all their treaties with the government had been abrogated by the war that had just ended; that he expressed some doubt upon the point; said he would look into the matter; and a short time afterwards called upon the delegation, and told them that he had made up his mind that their treaties had not been abrogated by the war; that the right had been given to the president to abrogate them by proclamation, and that he had not done so; that the occasion had passed, and that the treaties were still in force. The value of his services was subsequently agreed upon by McPherson, executor of Cochrane's estate, and fixed at $75,000. This was the value put upon them by the court below, and we see no occasion to disturb it.

The decree of the court below is therefore affirmed.