54 N.J. Eq. 439 | New York Court of Chancery | 1896
The bill contemplates an accounting for the dealings of two attorneys in fact under the power of attorney. That power did not contemplate that either of the agents appointed should perform the services of an attorney-at-law. Incident to the performance of their duties, they had authority to employ the subordinate agency of an attorney-at-law, but no direct agency of that kind was created by the instrument. The answer, on the other hand, alleges that the employment of the defendant Van Voorhis was a single matter in which he acted in two capacities as attorney in fact under the power of attorney and as attorney-at-law, and that in both those capacities he was to act alone, it being agreed that Thomas B. Hutchinson was merely to supervise, understand and approve that which should be done under the power of attorney.
Under this allegation of the answer, the power of attorney did not deal with the entire employment. Its office was not to circumscribe the limits of the employment, but to confer such power as could be conferred only by such an instrument and which was requisite to the performance of the duties required of Van Voorhis in his capacity as attorney in fact.
The answer denies that a fixed rate of compensation was agreed upon, and avers that the understanding was that Van Voorhis should be paid what his services should be reasonably worth.
The object of the cross-bill is to secure for him, in the account
If the allegations of the answer be true, and I so take them upon this motion, I deem the filing of the cross-bill' to be a necessary step by the answering defendant to obtain the complete determination of all the matters involved in the litigation which the original bill inaugurated. Such object is a legitimate use of a cross-bill. Kirkpatrick v. Corning, 12 Stew. Eq. 136; Krueger v. Ferry, 14 Stew. Eq. 432; S. C. on appeal, 16 Stew. Eq. 295; Shearman v. Morrison, 149 Pa. St. 386.
Proceeding to the consideration of the three portions of the answer which are objected to for scandal' and impertinence, I find that the first of them alleges that the complainant, overwhelmed with litigation and other matters which required legal services, and alarmed by the danger therefrom to his character and estate, was unwilling, in person, to face the courts of his state, and felt obliged to secure the services of some one to whom he might entrust the management of'his property and affairs and then go to Europe; that Van Voorhis had been and was his attorney and trusted friend, and hence he was appealed to in the emergency to assume the burden of that management, involving, as it did, both business and legal services; that Van Voorhis was conscious of the dangers and, actuated by his apprehension of them and by his sympathy with his friend, he bestowed such incessant labor and was subjected to such worry and anxiety in the successful performance of the duties required that he broke down in body and mind.
It is insisted that this passage of the answer is material and relevant upon the question of the value of the services which Van Voorhis rendered. In Woods v. Morrell, 1 Johns. Ch. 103, Chancellor Kent said: “As to impertinent matter, the answer must not go out of the bill to state that which is not material or relevant to the case made out by the bill'. Long recitals, digressions, stories, conversations and insinuations tending to
Applying the test thus stated I think that it is clear that the delicacy and difficulty of the services rendered and the peculiar fitness of Van Voorhis to render them, his devotion to them and the success of his efforts, are all matters pertinent to an inquiry as to the value of these services. Although I think that the pleader might safely have omitted this portion of the answer or might have stated its substance in language which would more succinctly and clearly and less reproachfully have defined the character of the services, I am of opinion that the motion to strike out in this particular should not prevail.
The remaining portions of the answer quoted should be stricken out. Under the test above applied, they are both scandalous and impertinent. They allege a baseness of purpose in the complainant which is not a defence, and complain of a delay in prosecution which was contemplated between the parties in March, 1893, when an unsettled balance was admitted to exist, as a matter for future litigation, and which does not present a case of laches which should induce this court to withhold from the complainant such relief as he may be entitled to at its hands. The allegation of the answer is that in March, 1893, this reservation for future litigation was agreed upon, and that in the same month Van Voorhis went to a hospital because of ill-health, which has resulted in the permanent derangement of his mind. It would seem to be a legitimate inference from such allegations that delay in litigation was contemplated by the parties and suffered by the complainant to admit of the recovery of Van Voorhis, and was not terminated until the impossibility of that recovery became manifest; and was not to subserve the base and dishonest purpose suggested by the answer.
The motion will be denied as to the first portion of the answer objected to and the portion by way of cross-bill, but as to the other portions of the answer will be granted.