County of Chester v. Barber

1. County commissioners, when collecting claims due the county, have a right to employ counsel and to agree with them for reasonable compensation. But they have no power to bind the county by a contract to pay said counsel an unreasonably large contingent fee. 2. Whether such an agreement is champertous or not, or whether the English statutes against champerty are in force in this state, not decided. 3. A contract between attorney and client for a contingent fee, is not necessarily invalid. All that the law will do in such case is to scrutinize the transaction and see that it is fair, and that no unfair advantage has been taken either of the necessities or the ignorance of the client.

Error to the Court of Common Pleas of Delaware county: Of January Term 1881, No. 39. This was an action of debt on a sealed instrument, brought by William E. Barber, Joseph Hemphill and James W. M. Newlin against the county of Chester, to recover a contingent fee of fifty per cent, on the sum of $21,398.34, being a rebate secured to Chester county from the state of Pennsylvania for taxes illegally charged to the county by the state revenue board, and - paid into the state treasury. Suit was originally brought in Chester county, and a change of venue to Delaware county was awarded on motion of the plaintiffs. The narr. declared specially on the following agreement:— “ Memorandum of an agreement, made this — day of March, A. D. 1877, between John Irey, David Ramsey and John McWilliams, commissioners of the county of Chester, in the state of Pennsylvania, of the first part, and William E. Barber and Joseph Hemphill, Esqs., of West Chester, in the county aforesaid, and James W. M. Uewlin, Esq., of the city of Philadelphia, of the second part. “ Said commissioners having retained the parties of the second part to represent Chester county upon an application, and for the proceedings to secure a rebate to said county, for the amount of taxes added by the state revenue hoard, for the years 1875, 1876 and 1877, to the return of sai'd county: It is hereby understood and agreed by the parties hereto, that the parties of the second part shall be paid a sum equal to fifty per centum of the amount which shall be finally adjudged to have been illegally charged to the said county of Chester as aforesaid, and in the event of the said suit being decided against the said county of Chester, then the parties of the second part are to make no charge for their services, and are further to relieve the parties of the first part from all costs and expenses in the premises. “ Witness our hands and seals, the day and year first above written. “ Witness: “ Attest: J. E. Hill, Clerk.” The plaintiffs proved that, in pursuance of the above contract, they had taken proceedings, inter alia, by application and appeal to the auditor-general, state treasurer and attorney-general, and to the Court of Common Pleas of Dauphin county, from the settlement made by the Board of Revenue Commissioners against the county of Chester for the years 1875, 1876 and 1877, the result of which was that it was finally determined that taxes had been illegally added to the return of the county by the state revenue board for those years; and a credit settlement was thereupon made between the state and Chester county, by which the latter received a credit of $21,398.34. David Ramsey, one of the county commissioners, testified as follows: Q. When did you first know or see of the matter contained in that agreement ? (Objected to.) A. I can’t remember dates; it was some time before there was any article. Q. From whom ? A. Mr. Barber. Q. Where did you get the information ? A. From our counsel. Q. Who w-as he ? A. Mr. Barber. Q. What was said by him the first time it- was mentioned before the agreement was written ? A. He made the proposition, as near as I can remember, what ho and Mr. Hemphill and Mr. Newlin would do, and how they had agreed with other counties. Q. In order to test the matter ? A. Yes; they said it should not cost the county anything, and if they gained it, they would get their percentage. Q. How much ? A. Fifty per cent. Q. Anything else ? A. The understanding was that as the county got credit, and was credited with the money, they were to get their fee. Q. If the county got credit for the money they would get their fee? A. Yes. John McWilliams, another of the commissioners, testified: Q. What did you know about the matter contained in that agreement when you executed it ? A. I knew' they made this proposition 'to undertake to get a rebate. Q. Who made these representations to you and came to you to sign the paper? A. Mr. Barber came to us and asked us to sign the paper. Q. Was Mr. Barber your counsel ? A. Yes. Q. Had you any other ? A. No other at that time. Q. Did Mr. Barber advise you to sign that paper? A. He advised us to go into it, I think, and said that it was for the benefit of the county. Q. State whether or not you went into that agreement, and signed that paper, on the advice of Mr. Barber ? A. I think the probability is we would not have signed it without his advice; he advised us to go into it as it was for the benefit of the county. Q. Did you have the explanation of any one else ? A. Mr. Hemphill. Q. Any one else ? A. I don’t know as we had; they said other counties had gone into this. Q. Did Mr. Barber say who represented the other counties ? A. He said Mr. Newlin had a number of them. Q. Did he state the amount they paid as fees ? A. I don’t know' that; I am not sure. Q. How came you to fix on the fifty per cent. ? A. I was under the impression that was the proposition they made themselves. * * * Q. Did you stipulate for any terms in that agreement ? A. I don’t know that we did particularly. Q. Do you remember how it got into the agreement that these gentlemen were to save the county harmless, that is, in case they failed ? A. My recollection of that is that that was a proposition of their own. The defendant presented the following points: 1. The alleged contract between the plaintiffs and defendant, put in evidence in this case, providing that they should receive one-half part of the results of their efforts, is against the policy of the law, and is incapable of enforcement by action. The jury is therefore instructed to disregard it. Ans. “ The contract, if fair and'free from fraud, is not against the policy of the law, and, if the plaintiffs have faithfully performed their part, the defendant must keep the other part.” 2. There is no evidence in this cause which entitles the plaintiffs to anything more than a just and reasonable compensation for the professional services rendered by them to the defendant. Ans. “ The plaintiffs are entitled to a verdict for the sum stipulated to be paid by the written agreement, provided the jury find that there was no fraud, false representation, or overreaching on' the part of the plaintiffs in the making of the agreement. If the jury find that the agreement was fairly made, and that it is free from any taint of fraud, then the ‘•just and reasonable sum’ to which the plaintiffs are entitled, is the amount named in the agreement, with interest thereon.” 3. Inasmuch as Mr. Barber, one of the plaintiffs, was at the time of the making of the alleged contract, counsel for the defendant, and this fact was within the knowledge of the other plaintiffs, no recovery can be had upon the contract in question. Ans. “If the jury find that Mr. Barber actually took advantage of the commissioners, and caused them by reason of his influence with them as their counsel, to enter into an unreasonable agreement, and that the agreement would not have been signed except through his counsel and advice, for.his own benefit, then the plaintiff cannot recover.” 4. Inasmuch as Mr. Barber, one of the plaintiffs, was at the time of the making of the alleged contract, counsel for the defendant, he cannot recover in the present action. Ans. “ To this point I give the same answer as that given to the third point.” 5. As this is a joint action, and as Mr. Barber is not entitled to recover, the verdict must be for the defendant. Ans. “ I do not say that Mr. Barber is not entitled to recover; as before stated, unless the jury find some fraud, false representation or undue advantage on his part, he is entitled to recover the sum agreed upon. But if the jury should find that he is not entitled because of fraud or deception practiced by him, or because he has improperly exerted his influence as attorney for the commissioners, then the other plaintiffs cannot recover, as they would be bound by his acts. I say to the jury that the salary of $150 a year, paid to Mr. Barber did not include his compensation for the services here claimed.” 6. The Commissioners of Chester county had no lawful authority to contract with the plaintiff's, that the county would pay them one-half part of any abatement which they might secure, upon any claim made by the Commonwealth against said county, and the alleged contract was therefore not binding upon the defendant. Ans. “If the commissioners were not deceived, defrauded or improperly influenced, they had the right to make the contract, it apparently being for the benefit of the county.” 7. The seal of the county to the alleged contract having been affixed after the same was signed, and the seal having been so affixed without the order of the county commissioners, and after the instrument was signed, the instrument of writing on which suit is brought is void. This being an action of debt against the county on the said sealed instrument, the action cannot be sustained, and the verdict must be for the defendant. Ans. “ There is not sufficient evidence to warrant the court in charging you that the agreement was not properly sealed. The weight of the evidence is that the forms of law were complied with, especially as the agreement read in evidence has been produced properly signed and sealed by the defendant, and comes directly from the custody of the county officers.” Verdict and judgment for the plaintiffs for $11,540.16. The defendant took this writ of error, assigning for error the answers to the defendant’s points as above. [The evidence from which the above extracts are taken was printed in an appendix to the paper books of both the plaintiff in error and defendant in error. The defendants in error, however, in their paper book, protested that none of the evidence was properly before this court, because it was not contained in the bill of exceptions which was not settled and sealed by the judge who tried the cause until more than six months after the trial, and then against the protest of the defendants in error.]