Pemberton v. Lockett

THIS was an appeal from the Circuit Court of the United States for the District of Columbia.

The facts are stated in the opinion of the court.

The Circuit Court decreed that $14,230, (being the one-half of the sum of $28,460 awarded,) less five per cent., together with interest thereon from the 20th of June, 1855, and costs, be paid by Pemberton to the complainants. From this decree, Pemberton appealed to this court.

It was argued by Mr. Brent and Mr. Johnson, with whom was Mr. May, for the appellant, and by Mr. Bradley for the appellees, on which side there was also a brief filed by Mr. Bradley and Mr. Hayes.

There were many points raised by the counsel for the appeallant; but as several of them were not touched upon in the decision of the court, it is proper to mention only such as were. The principal points which were included in the decision related to the facts of the case, and were as follows:Pemberton resided in New Orleans; Berret, Johnson, and Lockett, resided in Washington city; and the agreement was made in New Orleans.

This Creole claim was presented to the Executive Government of the United States, and was considered by it, (See Opinion of Attorney General Legare of July 20, 1842, 4 vol., 98,) was discussed in Congress, and became the subject of negotiation between our Government and that of Great Britain.

At length a convention, on the 8th of February, 1853, was made between these Governments, for the adjustment of all claims of the citizens of either Government against the other, and commissioners were appointed for hearing and deciding upon said claim.

10 Stat. at Large, 988.

These commissioners sat in London, and a public officer, called the law agent of the United States, was duly commissioned under the convention, to represent all claims of our citizens before the board; and he was present in London, and performed his duties, and was paid for them by the Government of the United States.

Neither of the defendants in error appeared before the board or the umpire appointed under the convention.

Befor that board the 'Creole case' was presented, and 'it was considered and discussed as a single case, and not in the name of a particular claimant.'

The questions of fact and law were common to all who were interested in this claim.

There was no other argument presented to the commission in the 'Creole case,' except that which was made verbally by the said law agent of the United States.

The papers in the claim were transmitted to London by the State Department.

Trinder & Eyre, of London, solicitors, were employed by Pemberton, under the advice of Senator Benjamin, to represent his claim before the board, so far as it was competent for private counsel to do so. And they presented to the law agent of the United States a memorial in his behalf, and properly-authenticated evidence in support of the claim, and 'which went before the commissioners when the papers were placed in their hands.'

Without authentic data to establish the loss of each claimant, no specific amounts could have been awarded.

That another memorial and proof to sustain it was forwarded by Johnson, one of the defendants in error, to the said law agent at London, and was presented by him and used in support of Pemberton's claim.

That said Johnson claimed to be counsel for others, and among them for said Lockett, one of the defendants in error, before said board in the 'Creole case,' and forwarded a memorial in his case.

That by the 3d article of said convention all claims were to be presented within six months from the day of the first meeting of the board.

10 Stat. at L., p. 988, art. 1; 990, art. 3.

That said Johnson did not transmit the memorial prepared by him for Pemberton's claim until after 29th of May, 1854, and after the lapse of six months from the opening of the board.

That so carelessly was the same prepared, that he did not even correctly present the name of said Pemberton, nor did he forward it for forty-two days after he swore to it, as shown by his letter of the 29th of May, enclosing it; and this, though the memorial, as sworn to, shows on its face that it was then out of season, and liable to be ruled out.

That neither the said Berret nor Lockett appear to have had any agency or part whatever in representing or prosecuting the said claim.

That besides the said memorial and papers transmitted by said Johnson to said law agent, the only part he had or took in representing the said claim of Pemberton was a mere reference to the same by a letter to the said board, stating that his argument, presented in said Lockett's case, 'was applicable to the case of the Merchants' Insurance Company.'

That said Lockett's claim was a heavy one, being for the value of seventy-five slaves, and it comprised all the labor and service rendered by said Johnson in the 'Creole case;' and that the same was submitted on said Johnson's argument, made in that behalf alone, so far as he was concerned, and without other act or thing done by him in behalf of Pemberton, other than the reference aforesaid.

That the said Lockett, Berret, and Johnson, before the case was argued in London, released and abandoned their said joint contract for their services to said Pemberton; and the said Johnson, who alone afterwards appeared or was known in the case, was a mere volunteer, and offered to make a new contract for his services, to be rendered for one-half the amount stipulated for in the said joint agreement.

That said Trinder & Eyre were present at the argument of the claim, and aided the law agent of the United States in the case, and their correspondence will show an actual and faithful performance of duty. And they were compensated by Pemberton.

That the award in the 'Creole case' was made on the 9th of January, 1855, by the umpire, Mr. Bates; and two several items of claim were allowed said Pemberton, amounting to $28,460, on the 15th of January, 1855.

And this sum was transmitted to the Department of State at Washington, and received by the Secretary of said Department, as the money of the said Pemberton, as liquidator, and to be paid to him as such, subject to a deduction of five per cent. for the expenses of the commission.

That the full amount due and payable to said Pemberton was by him claimed at the State Department, from the then Secretary thereof, the Hon. William L. Marcy, and the payment of one-half thereof was refused and restrained by injunction issued from said Circuit Court on the 20th of June, 1855, 'commanding said Pemberton, his attorneys, agents, &c., not to demand or receive the remaining half of said award to him as liquidator, to wit: the sum of $14,230, subject to said deduction of five per cent.' And the said sum of money has remained and now is in the said Department of State, under the said injunction, which has never been dissolved.

The counsel for the appellees contended, amongst other points, that the contract had neither been recinded by the acts of the parties nor the change of circumstances.

Upon the latter proposition, their argument was as follows:

2. The contract was not rescinded or annulled by any change of circumstances rendering it impossible to be carried into effect.

The appellees deny the allegation in the answer, that compensation was agreed upon in the event of a recovery of the claim against the United States. No such condition is expressed or implied in the contract. The appellees also deny the allegations in the answer, that the contract was entered into for services to be performed in Washington city, and that the provision in the convention, 'that it shall be competent for each Government to name one person to attend the commissioners, as agen on its behalf, and to answer claims made upon it, and to represent it generally in all matters connected with the investigation and decision thereof, were circumstances of themselves which put an end to the contract, so that complainants had no longer any right to recover thereon.' No such conditions are found in the agreement.

The most importan work in the prosecution of the case (viz: the preparation of evidence) could only be done in the United States, and particularly in the city of Washington. The evidence shows that the appellees were employed several weeks in obtaining testimony from the Departments in Washington. The convention provided that the claims should be heard upon such evidence or information as shall be furnished by or on behalf of their respective Governments. (Report of Decisions of the Commission of Claims, p. 9.) Thus, all the memorials and proofs were required to be presented through the Department of State at Washington.

The appointment of an agent in behalf of the United States did not dispense with the necessity for employing associate counsel. Such counsel were frequently associated with the agent of the United States. (Report of Decisions of the Commission, pp. 16, 18, 29, 41, &c.)

There was no necessity for employing English counsel, as is alleged, as the case was not before an English court, but a joint commission; and, from the peculiarity of the case, English counsel were totally unfitted to manage it.

Mr. Justice NELSON delivered the opinion of the court.