McPherson v. Cox

APPEAL from the Supreme Court of the District of Columbia.

On the twenty-sixth day of November, 1870, Mrs. Mary A. Cox, the appellee, who was a widow, sold and conveyed to Charles H. Holden, Charles W. King, and Samuel Ford, square No. 312 of the city of Washington, for the sum of $38,000. No part of this was paid at the time, but a bond was given for it, due ten years after date, with interest payable annually; and, to secure the payment of this sum and of the interest as it fell due, the purchasers made a deed of trust, with the usual conditions, to John D. McPherson and Jesse B. Wilson. At the time of the transaction, the bond was placed in the possession of McPherson, the appellant, where it remains to the present time.

In June, 1873, Mrs. Cox filed her bill in chancery, in the Supreme Court of the District of Columbia, praying that McPherson be discharged and removed from his trust under the deed, and be compelled to deliver to her the bond of Holden, King, and Ford.

The court decreed that, on account of the ill-feeling and unfriendly relations shown to exist between the parties, by reason of a controversy between them in regard to a claim of McPherson for $5,000 for legal services, against Mrs. Cox, and of a lien for that amount on the bond mentioned, it was fit and proper that he should cease to be such trustee. It accordingly declared him removed as trustee, and all his rights and powers vested in the other trustee, Wilson; and ordered him to deliver up the bond to Wilson, who was to hold it subject to the further order of the court. But Wilson was to receive and pay over to Mrs. Cox all that might be paid on it, except $10,000 of the latest payments, which was to be retained subject to the further order of the court.

From this decree McPherson appeals to this court.

The remaining facts in the case are set forth in the opinion of the court.

Mr. Philip Phillips and Mr. George F. Appleby for the appellant.

Ill-feelings and unfriendly relations of a cestui que trust towards his trustee constitute no ground for removing the latter from his trust. Forster v. Davies, 4 De G., F. & J. 133; Gibbes v. Smith, 2 Rich. (S.C..) Eq. 131; Berry v. Williamson, 11 B. Mon. (Ky.) 245; Hill, Trustees, 191.

The appellant was in no fault in any of the transactions complained of by the appellee; and the court below, in paying no regard to the testimony, and decreeing his removal, acted arbitrarily, and without a full consideration of the whole case. Eyre v. Potter, 15 How. 42; Bouldin v. Alexander, 15 Wall. 132; Peter v. Beverly, 10 Pet. 564; Sergeant v. Howe et al., 21 Ill. 148; Berry v. Skinner, 30 Md. 572; Gibbes v. Smith, supra; Berry v. Williamson, supra; Tiffany & Bullard, Law Trusts and Trustees, 387.

The court erred in decreeing that the appellant should part with the possession of the bond on which he claimed a lien for his professional services as an attorney-at-law. Platt v. Haler, 23 Wend. (N. Y.) 456; Warren v. Griswold, 8 id. 666; Worrall v. Johnson, 2 Jac. & W. 218; Russell's ase, 1 Keny. 129; In re Murray, 1 Russ. 519; In re Paschal, 10 Wall. 483; Maughan, Solicitors and Attorneys, 107, 137; Prevost v. Gratz et al., 6 Wheat. 481; Zeigler v. Hughes, 55 Ill. 288; Clark v. Pendleton, 20 Conn. 495; Chitty, Contr. 75, and cases cited.

The bill should have been dismissed for want of proper parties, and for multifariousness, and because it was prematurely filed. Wilbur v. Almy, 12 How. 191; 2 Story, Eq. Jur., sect. 1280; Drane v. Gunter, 19 Ala. 731; Cruger v. Halliday, 11 Paige (N. Y.), 319; Sergeant v. Howe et al., 21 Ill. 148, Breedlove v. Stump, 3 Yerg. (Tenn.) 257; Story, Eq. Pl., sect. 271.

Mr. Albert Pike, contra.

Whatever the contract was as to the amount of the contingent fee, there was no note or memorandum of it in writing, and it was not contemplated by either party that it was to be, or could be, performed on either side within a year. Therefore, by the Statute of Frauds in force in the District of Columbia, it was of no effect.

The contract was clearly champertous. Thurston v. Percival, 1 Pick. (Mass.) 415; Kenney v. Browne, 3 Ridgway, Cas. Parl. 462; Strange v. Brennan, 10 London Jurist, 649; Stevens v. Bagwell, 15 Ves. 139; Wood v. Downes, 18 id. 120; Strachan v. Brandon, Eden, 303; Stanley v. Jones, 7 Bing. 369; Lathrop v. Amherst Bank, 9 Metc. (Mass.) 489; In re Masters, 4 Dowl. P. C. 18; Williams v. Protheroe, 5 Bing. 313; In the Matter of Bleakley, 5 Paige (N. Y.), 311; Merritt v. Lambert, 10 id. 352; Rust v. Larue, 4 Litt. (Ky.) 411; Arden v. Patterson, 5 Johns. (N. Y.) Ch. 44; Satterlee v. Frazer, 2 Sandf. (N. Y.) 14]

To call the fee contingent is an abuse of language.

If the contract was not champertous, it is because success was to be certain, and then the fee was enormously exorbitant and extortionate. Such contracts, made when the client is, by fear, doubt, and apprehension, under the lawyer's influence, cannot be sanctioned. Walmesley v. Booth, Barn. 478; Drapers' Company v. Davis, 2 Atk. 295; Saunderson v. Glass, id. 298; Sayer, Law of Costs, 321; Hobert, 117.

Anciently, a counsellor-at-law could bring no action in any English court, for his fee was not a debt. This was law in the time of Coke, and in that of Lord Hardwicke. The fees of counsel were honoraria, not merces. 1 Coke, Inst. 295 a; Moor v. Row, 1 Rep. Ch. 21; Thornhill v. Evans, 2 Atk. 331; Chesley v. Beliot, 4 T. R. 317; Newman v. Payne, 4 Bro. C. C. 352; Aubrey v. Popkin, 1 Dick. 403; Saunderson v. Glass, 2 Atk. 295; Crossley v. Park, 1 Jac. & W. 460. See also Dupin, ain e, Profession d'Avocat i., 105-110, 147, 597, 599, 690, 698, 699, 715; Camus, Lettre de la Profession d'Avocat, id. 267, 273.

There are no transactions which courts of equity will scrutinize with more jealousy than those between attorneys and their clients, especially when the latter are of inferior capacity and inexperienced. Mills v. Mills, 26 Conn. 217; Ex parte Plitt, 2 Wall. C. C. 453; Haight v. Moore, 37 N. Y. Sup. Ct. 161; McMahon v. Smith, 6 Heisk. (Tenn.) 167.

The court, if its action is needed, will disregard a contract for contingent fees, and allow counsel what, under the circumstances, it deems fair. The contract must have been made in abundant good faith, without suppression or reserve of facts, or exaggeration of apprehended difficulties, or undue influence of any sort or degree; and the compensation bargained for must be reasonable, and the transaction characterized throughout by all good fidelity to the client, or the court will not hold such compensation to be valid. Ex parte Plitt, 2 Wall. Jr. 473.

It is for the attorney to show that the dealings between him and his client, by which the attorney is benefited, are just and fair, and purely voluntary. Mason v. Ring, 2 Abb. (N. Y.) Pr. N. S. 322; Brock v. Barnes, 40 Barb. (N. Y.) 521.

The oral contract relied on is on its face void under the Statute of Frauds. It was not for any service presently to be rendered, nor were the counsel to engage in any litigation where the result would be doubtful. They were not to attempt, and they did not attempt, to 'break the lease' for the forfeiture of the contract to build. They were to wait until, some time during the seven years unexpired, the lessee might possibly, by a breach of another covenant, clearly and indisputably forfeit all right; and then they were to sue.

The appellant cannot retain the bond. He has no lien thereon, and no right thereto,--

First, Because there is no valid contract, and no indebtedness as claimed.

Second, Because the bond was received by him not in his character of attorney or solicitor, nor in the course of his professional employment for Mrs. Cox, nor in the ordinary course of his business, but in his character of trustee alone. Stevenson v. Blakelock, 1 M. & S. 538, per Gifford, arg., and Littledale, J., and Lord Ellenborough; Ex parte Nesbitt, 2 Sch. & Lef. 279; Champernown v. Scott, 6 Madd. 93.