19 Mo. 42 | Mo. | 1853
delivered the opinion of the court.
“ These presents witness, that the undersigned do hereby constitute and appoint John O’Fallon, Joshua B. Brant, Jesse G. Lindel!, John Finney, and Isaac Walker, their lawful agents and attorneys in fact, to direct, manage and conduct all matters and things whatsoever, pertaining to a proper and lawful defence against all suits, actions, motions or other proceedings in law or equity, now pending or instituted, as well as all which may be instituted, made or commenced against any one of the undersigned, at any time within ten years from the date hereof, by any person or persons whomsoever, claiming under .Jacques Glamorgan, deceased, for the whole or any portion of •the tract of one by forty arpens of ground granted to Gabriel Dodier, and being the second arpent north of and parallel to (the king’s road, or St. Charles street, with full power to contract with and employ such counsel as they may deem fit, and do and perform all other things in the premises, which, at their discretion, they may think needful and necessary to be per
“ These presents further witness, that, whereas, John O’Fallon and Jesse G. Lindell, in 1826, purchased said tract of land at sheriff’s sale, made in'virtue of a judgment and execution against Jacques Glamorgan’s executors, which purchase, if sustained in law, will be good against all persons claiming under Clamorgan. Now the said O’Fallon and Lindell, parties hereto, not desiring to avail themselves of said purchase, beyond their interest to property within said tract, otherwise acquired, and that they hereby agree to and with each of the undersigned, who bona fide claim any part of said tract, that on the payment' by them, to said O’Fallon and Lindell, of all money, with interest, by them expended in the premises, and pay all costs and fees whatever, accruing or to accrue in sustaining or attempting to sustain said purchase, they will give to each of the undersigned the benefit of said purchase, to the extent of his interest as aforesaid.
“ Witness our hands, at the city of St. Louis, this 28th day of August, 1845. “Peter Lindell,
“J. B. Brant,” &c.
The agents appointed had full power to contract with and employ counsel to conduct the defence. These persons signing said agreement were to pay to their agents and successors/
These agents then employed counsel to defend the suits which had been brought by one Fidelio Sharp and others in the Circuit Court of the United States for Missouri; also to defend suit instituted in the Common Pleas Court. They agreed to pay the counsel, that is Gamble & Bates, two thousand dollars — one thousand in six months, and the balance upon the determination of any one of said suits upon the merits, either in the Circuit Court of the United States for the Missouri district, or in the Supreme Court of Missouri. They employed Spalding & Tiffany upon the same terms as Gamble & Bates, Geyer & Dayton upon the same terms, and Judge Lawless upon the same terms. The suits were finally settled by a decision of the Supreme Court of the United States, in which the persons making the agreement succeeded in defeating the Clamorgan claim, and the defendant in this suit was quieted in his possession, and became, by the judgment of said .court, legally entitled to a large amount of property.
•In order to pay the fees of the counsel employed, the agreement had settled upon a principle of assessment. The owners of the interests adverse to Clamorgan, had agreed that the agents shall m rice the assessment according to the rights and interests of each in the tract, and this assessment shall be according to the value, to be ascertained by the county assessment for the time being. The agents employed Mr. Bhepley to examine the county assessment and get the basis upon which
This was done and the assessment made. Calls were accordingly adjusted to the interest of each respectively in the land. These agents then drew on the defendant, Brant, for his share of the money, and he refused to pay, alleging an improper assessment. These agents then, not as partners, but as persons who had employed counsel to defend the law suits of the defendant, became personally liable to the attorneys and counsel employed, and each separately paid a portion of the money which the defendant, Brant, should have paid. Brant was one of those who had authorized these persons to employ counsel to defe.nd his suit; the counsel defended Brant’s suit successfully. Brant refused to pay the calls made upon him by these agents, and these agents had each to pay separately for him a large amount of money, at different times, to the different lawyers and counsel. They united in bringing suit to recover the money from Brant, and it was held by this court that these persons were not partners, and that they did not jointly pay out the money for Brant, hut each paid separately his proportion of the amount from his own means, which Brant ought to have paid, and each had his separate cause of action against Brant.
This first decision ruling against the joint action was made upon the point specially relied on by Brant’s counsel at that time. Now the objection is seriously made against the separate action of those who have each paid out his own money to defend Brant’s law suit — paid out money not from a joint fund, but from their own purses, in different portions, at different times. This point is ruled against the defendant.
The judgment below is affirmed,