Consaul v. Cummings

Mr. Justice Shepard

delivered tbe opinion of tbe Court:

1. Tbe first assignment of error relates to tbe interlocutory decree of June 13, 1900, wbicb determined that a special partnership existed between Edmonds and Moyers, and directed tbe account to be taken. Tbe contention is that, “if any special partnership was ever created between tbe parties by tbe contract exhibited with tbe bill, it was dissolved and ceased to exist by tbe abandonment thereof by tbe said Edmonds and by tbe complainant as his committee during tbe lifetime of said Edmonds, and nothing was done by or on behalf of said Edmonds under said contract to entitle him or bis representative to an accounting.”

Tbe record furnishes no substantial foundation for this contention. Tbe defense to tbe claim of Edmonds of an interest in the fees collected in tbe cases embraced in tbe agreement is that in tbe year 1892 Edmonds, in consideration of certain sums of money advanced and paid to him by tbe defendant, agreed to accept the same in full settlement of bis interest, and to return bis copy of tbe agreement with an indorsement thereon showing said settlement. No evidence was offered, avowedly, to maintain any defense, on tbe ground of Edmonds’s abandonment of tbe partnership agreement, and bis failure to perform any services in its execution.

It appears, incidentally, that Edmonds took little or no part, practically, in the actual prosecution of tbe cases; but it does not appear that be was ever called upon, or even expected, to do so. Tbe agreement is ambiguous in respect of tbe particular nature of tbe services to be performed by each of tbe special partners, but rather seems to contemplate that tbe active prosecution of the cases should be conducted by Moyers. This was evidently the construction adopted and acted upon by Moyers. Referring to tbe agreement in bis testimony, be said: “It was not a *43 partnership agreement. It was an employment of me to attend to certain business for him in the court of claims in regard to certain cases. Ton might style it a limited partnership. There was no general partnership.” Again, one Hill, who had a desk in the office of Moyers, and who was called as a witness by the latter to prove the payment of $500 by him to Edmonds, said that he had read the “partnership agreement by which Colonel Moyers was to take charge of Mr. Edmonds’s business. I know that Colonel Moyers had agreed to take charge of Mr. Edmonds’s business and conduct it for him; I knew that in 1888, when I was in the office with Colonel Moyers.” We have before mentioned the apparent acquiescence of Moyers in the inactivity of Edmonds, there being no evidence tending to show that he ever called upon him for any assistance. “In cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation of the parties themselves is entitled to great, if not controlling influence. The interest of each generally leads him to a construction "most favorable to himself, and when the difference has become serious and beyond amicable adjustment it can be settled only by the arbitrament of the law. But in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.” Chicago v. Sheldon, 9 Wall. 50, 54 , 19 L. ed. 594, 596; Topliff v. Topliff, 122 U. S. 121, 131 , 30 L. ed. 1110, 1114, 7 Sup. Ct. Rep. 1057.

2. The second assignment is that the court erred “in decreeing that there was no valid and binding purchase-made by the said Moyers of the interest of the said Edmonds in said claims.”

Without passing upon the question whether a binding contract could have been made with Edmonds.for the assignment of his interest in the fees expected to be realized under the contract, on account of his pre-established lunacy, it is sufficient to say that -we find no satisfactory proof that such an assignment or relinquishment was ever made. The relations established between the parties by the agreement imposed upon Moyers the *44 burden of making clear and satisfactory proof of tbe settlement, and the release by Edmonds of his interest in the fees to accrue thereunder.

The entries in Moyers’s books show certain advances and “loans” to Edmonds, who was impecunious, of sums ranging from $10 to $100, between January IT and July 23, 1892. These entries speak for themselves. The evidence of the payment of the final sum of $500 is meager, and, in so far as it relates to the settlement and release, of which this payment is claimed to have been the concluding act, falls short of the requisite standard of certainty.

3. The third assignment of error seeks to raise the question of the right of the complainant to bring this suit as the administrator of the estate of George B. Edmonds. The contention is that the Virginia court of probate had no' jurisdiction to appoint an administrator of said estate, and consequently that its order was a nullity.

The allegation of the third paragraph of the bill that complainant had been appointed administrator by the Virginia court was expressly admitted in the answer, and objection to the validity of that appointment has been raised for the first time on this appeal. The objection is founded on certain evidence, brought out incidentally, tending to show that intestate had become a resident of the'District of Columbia in 18J2; but also that he had spent some time in a soldiers’ home in Virginia after 1891, and had gone again to that State in February, 1896, by arrangement of his committee, where he remained until his death in October of the same year.

Without regard to the irregular manner in which this contention has arisen, we are of the opinion that the issuing of letters of administration must be accepted as valid. Richmond & D. R. Co. v. Gorman, 7 App. D. C. 91, 106.

4. The fourth assignment of error is founded on the action of the court in overruling the exception taken to so much of the auditor’s report as included the claim cases of Cate, Davidson, Bagnell, Hunt, Ladd, Harding, Williams, Hombaker, Merrill, *45 Elis, Burgwyn, and Eauber in tbe fee agreement between the parties.

A great deal of testimony has been directed to the question of the exclusion from the partnership account of these eases, the combined fees in which amount to $12,788.17.

In the first place it was proved beyond question that, about 1892, Edmonds delivered to Cummings (his committee) his own copy of the agreement to which was then firmly attached a list of the cases purporting to be the schedule referred to therein. This list includes the cases above named. After Edmonds’s death, original papers relating to the large majority, if not to all, of the cases enumerated in the schedule were found in trunks or boxes belonging to him. The papers were inclosed in separate “jackets” marked with the name of the case. These pajiers, as well as private papers relating to the cases in question, produced by Moyers, together with his dockets and books of entries, were produced before the auditor, before whom also much of the oral testimony was taken. The evidence relating to these matters, as presented in the printed record, is confusing, to say the least of it. The great mass of these papers have been omitted from the record. In some instances they are described in the record, and with regard to a great portion of them a stipulation was made to supply omissions from the transcript. This stipulation is in such condensed form that its bearing is general, and not particular. The auditor’s report indicates a careful examination into the particulars of each case in the reference. As regards the Hunt case, jn which the fee collected was $9,722.50, making it the one of the greatest consequence, the auditor reports: “The evidence shows that Edmonds was employed as attorney in this claim as early as May or June, 1886, and had a fee agreement, which is'produced here, dated June 1, 1886. The defendant’s first appearance in the case is in October, 1888.” This and similar facts in regard to other cases tend to establish the genuineness of the schedule attached to Edmonds’s copy of the contract in which it is included. Moyers produced no schedule and did not account for his omission to have one made and attached, — an omission rather strange considering the *46 nature of the contract and tbe fact tbat Moyers bad cases of bis own of tbe same nature in wbicb Edmonds was not interested. Tbe omission becomes stranger still wben we find in tbe record tbat Edmonds presented a contract to Moyers for signature, wbicb Moyers objected to, and tbat Moyers tben prepared tbe contract tbat was executed, and caused it to be typewritten by one of bis clerks. Tbe unsigned contract evidently contemplated a list of cases, but refers to no schedule; but tbe substituted contract expressly refers to an attached schedule. Edmonds having died before tbe controversy arose, there was no further evidence obtainable on bis behalf. We cannot find from tbe opposing testimony tbat this schedule was deliberately prepared by Edmonds without foundation and for the purpose of defrauding Moyers. Recurring to tbe Hunt case above mentioned, Moyers was unable to produce a contract with tbe party, and produced no written evidence showing an employment of himself individually. His own testimony, relating particularly to tbe transactions with Edmonds, is, of course, not competent. Tbe whole matter in controversy relating to this partnership was referred to tbe auditor, upon such evidence as bad been given and upon such other as might be taken before him, with direction to report bis conclusions. Having done this, bis findings of fact were reviewed by tbe justice presiding in tbe equity court, concurred in, save as regards a single item wbicb is not now in controversy, and carried into tbe decree. “Clearly, tben,” in the language of Chief Justice Fuller, “they are to be taken as presumptively correct, and unless some obvious error has intervened in tbe application of tbe law, or some serious or important mistake has been made in tbe consideration of the evidence, tbe decree should be permitted to stand.” Crawford v. Neal, 144 U. S. 585, 596 , 36 L. ed. 552, 557, 12 Sup. Ct. Rep. 759. See also Furrer v. Ferris, 145 U. S. 132, 134 , 36 L. ed. 649, 651, 12 Sup. Ct. Rep. 821; Morgan v. Daniels, 153 U. S. 120, 124 , 38 L. ed. 657, 658, 14 Sup. Ct. Rep. 772.

It may be admitted tbat there is some doubt respecting tbe inclusion of some of these claims in tbe partnership agreement, but tbat doubt is not sufficient to warrant tbe rejection of tbe *47 auditor’s findings, that have been examined and approved by the court to which they were reported. Moreover, the doubt has been largely occasioned by the failure of Moyers to obtain the schedule of the cases, and the careless manner in which he seems to have kept his office records and entries.

5. The fifth, sixth, and seventh assignments of error, relating to credits claimed by Moyers for expenses incurred in the prosecution of the cases, and for extra services, fees, and charges, may be considered under one head, and in a different order from that of their presentation, for the sake of convenience.

(1) The items claimed on account of fees paid to attorneys and agents in the matter of procuring legislation by Congress looking to the reference and payment of the claims were properly denied. Such services are not the subject of lawful contract. Owens v. Wilkinson, 20 App. D. C. 51.

(2) Nor was the defendant entitled to any credits for extra services as claimed. If any such were rendered in the matter of urging and procuring legislation they cannot be made a legal charge, as we have just seen. It does not appear that legal services were rendered beyond those usually contemplated in conducting litigation of the kind. The only foundation for the claim would seem to be in the fact that Moyers performed all the services in conducting the litigation to an end because of Edmonds’s failure to assist. That contention has been disposed of under the first assignment of error.

(3) The exception taken to the refusal to allow the expenses incurred in the prosecution of the cases presents another question of some difficulty. Expenses were allowed by the auditor in a great many of the cases included in the schedule showing successful termination and the collection of the judgments. The amounts of these allowances we do not understand to be questioned by the appellants. The controversy applies to a great number of other cases, some pending, but the majority long since determined adversely to the claimants. Those in pending and unsettled cases may be regarded as not now in question; for the case, as we have seen, has been ordered to be retained to the end *48 that orders may be made in such of these as may be hereafter collected.

The question, then, may be confined to the expenses claimed as having been incurred, and paid by Moyers, in the unsuccessful cases, and which consist of fees and costs of depositions, fees to local attorneys, traveling expenses, and so forth. Begarding these the auditor reported as follows: “I think a fair interpretation of this agreement is that each claim should be settled between the partners promptly upon the receipt by Moyers of the attorney’s fee, and such settlement should include the. expenses advanced by Moyers under the terms and limitations of the partnership agreement. Holding these views, I have declined to make any allowance in this account for the expense said to have been incurred in the prosecution of cases other than those set forth in the account herewith.” In so far as this conclusion -embraces the expenses in the cases in which collection of fees has been made, or even in those where the judgments have not yet been collected, it is of no material importance, but we cannot concur with the court in its adoption as regards the claims that have been denied recognition. It is to be presumed that the parties had some hope of success in each of these cases, —enough, at least, to warrant their prosecution; and they knew that the prosecution must entail some expense. Moyers agreed to advance these expenses on joint account; but one half was to be a charge against Edmonds. In the absence of express language to that effect it is unreasonable to suppose that Moyers intended to take the entire risk of success in each case, looking to Edmonds for one half of the expense incurred in the successful cases alone, and we do not regard the contract as requiring such a construction. In our view of the meaning of this contract, we are of the opinion that Moyers is justly entitled to credit in the accounting for one half of the expenses incurred by him in the prosecution of each of these unsuccessful cases. It is true that the evidence relating to the several items of these expenses is uncertain, — an uncertainty largely due to the manner in which Moyers kept his accounts. Nevertheless, we are of opinion that from an examination of those accounts or the state *49 ment made by him of the same, in connection with such information as may be derived from the records of the court of claims, and the general average of expenses in other cases of the same nature that have been ascertained and allowed, a fair and reasonable estimate may be made. This estimate should not include any part of the general office expenses of Moyers, as these are embraced in his undertaking to conduct the prosecution of the cases; but in other respects there is no reason why it should not be liberally made, in view of the fact that the large balance of fees for distribution is the result of Moyers’ exertions and expenditures of money during the long period in which he was c-ngag'ed in the prosecution of the cases comprehended in the agreement with "Edmonds, who rendered no substantial assistance, and was, moreover, supported in part by money advanced to him by Moyers beyond the requirements of that agreement.

6. As the case must be remanded for another reference to the auditor to ascertain and allow the credits to which Moyers is entitled for expenses in the prosecution of the unsuccessful claims, it is proper to direct attention to another item of credit for which no allowance has been made. By the terms of the decree ordering Moyers to pay the balance found to be due on the accounting, interest has been awarded against him for the time when he should have accounted to the plaintiff therefor, namely, September 16, 1899. The appellants offer no objection to this award of interest, but complain that a similar award was not made respecting the sum of $1,47 0 found to have been advanced by Moyers to Edmonds in 1892. We are of the opinion that this claim is a just one, and that in restating the account interest on that amount should be allowed in favor of Moyers from, say, the 1st day of January, 1893, until September 16, 1899.

Save in respect of the particular errors pointed out herein above the decree is correct; but for those errors it will be reversed and the cause remanded, with direction to refer the account to the auditor that he may ascertain the credits to which Moyers is entitled on account of the expenses incurred in the unsuccessful cases, and the interest upon the $1,470 ad *50 vanced by Mm, at the rate of 6 per cent per annum from January 1, 1893, to September 16, 1899; and with further direction to take such proceedings upon the auditor’s report as shall not be inconsistent with this opinion.

Each party will be taxed with one half of the costs incurred on this appeal. It is so ordered. Reversed.

On June 3, 1904, the appellants, by Mr. Cole, Mr. Donaldson, and Mr. Huidekoper, filed a motion to modify and enlarge the decree and mandate of this court, so as to (1) authorize the auditor to ascertain and report the expenses paid by Gilbert Moyers in the prosecution of the pending claims mentioned in these proceedings, as well as those disallowed'or unsuccessful; and (2) also to authorize the auditor, upon the ground of alleged newly discovered evidence set forth in an affidavit attached to the motion, to make a further report upon the question whether certain claims mentioned in the motion were included in the partnership agreement, and that, if he should find that some or all of them were not so included, to restate the account.

This motion was denied by the court on June 8, 1904, Mr. Chief Justice An vet indorsing the following upon the motion:

“This motion is denied. Questions relating to claims that may have been referred to the auditor under the provision of the decree appealed from retaiMng the cause for their consideration and determination, are not before us on this appeal, and hence no order can be made governing their disposition or allowance. For this reason, there is nothing in the decree of this court to preclude a reference or re-reference of such claims to the auditor, if the justice presiding in the equity court shall deem it necessary or proper so to do.”

On June 7, 1904, the appellee, by Mr. Tucker, filed a motion for a reargument of the cause, or, in event that such motion should be denied, that the decree of this court should be modified or changed (1) so as to make it one of affirmance instead of reversal, with a statement in the opinion that in any pending or subsequent reference to the auditor the estate of Gilbert Moyers should be allowed the credits this court had held he was *51 entitled to; (2) so as to define what were the “general office expenses” which this court in its opinion stated Moyers’s estate should not be given credit for in the new accounting ordered; (3) so as not to allow that estate interest on the entire $1,470, as required in the opinion; and (4) so as to require the appellants to pay the entire costs of the appeal, instead of one half.

This motion was denied by the court on June 8, 1904.