180 Ky. 773 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming upon both the original and cross appeals.
This suit is a hind of an aftermath of the litigation between the county of Green and the holders of its bonds, which were issued in aid of the construction of
“On motion it is ordered by the court that Bacon & Macpherson, Col. JohnW. Lewis and Judge D. T. Towles be and they are hereby employed to defend Green county in the suits of Sidebottom against Green county, pending in the Green circuit court, and the suit of John Thomas, et al.. against Green county, pending in the circuit court of the United States, at Louisville, and any other suits that may be brought against Green county on account of the bonds issued in aid of the Cumberland & Ohio Railroad Company, under the following contract, to-wit: This contract made the 15th day of November, 1894, by and between the Green county and fiscal courts of the first part and D. T. Towles, John W. Lewis and Bacon & Macpherson, of the second part, Witnesseth: That whereas there is now pending in the circuit court of Green county a certain suit against Green county wherein one Sidebottom is plaintiff, and in the circuit court of the United States for the sixth district of Kentucky a certain suit against Green county wherein one Thomas and others are plaintiffs, both of said suits being brought on bonds and coupons alleged to have been issued by said county in aid of the Cumberland & Ohio Railroad Company so called, and whereas said courts would regard as ruinous to said county tlie success of the plaintiffs in said cause, and*776 whereas the teal questions presented in said causes involve a very large sum of money and affect and control the total liability of said county by reason of its issue of any and all bonds in aid of said road and whereas the said courts have adjudged it necessary to employ counsel to defend said suits, the said parties of the first part hereby employ and retain the second parties to defend said causes, and in consideration of their acceptance of said employment the said first parties agree and promise to pay the said second parties for their services as attorneys the sum of $1,200.00, a fee certain, no matter how said cases may result, and further agree to pay said attorneys a sum equal to five per centum of any amount of said bonds or any bonds issued by said Green county in aid of said railroad, which they may save said Green county or the first parties or as representatives or acting for said Green county in said duties or which may be controlled and settled by the decisions rendered in said causes or either of them, and second parties are to defend all suits that may be brought against said county on account of said bonds or coupons issued by said county in aid of said road. Witness the hands of the second parties and of the judge and of the justices of the peacq of said Green county.”
Bacon & Macpherson was a partnership between Byron Bacon, deceased, and the appellant, Ernest Macpherson, for a general practice of law, and by the terms of the partnership, Bacon was to receive three-fifths and Macpherson two-fifths of the proceeds of the business of the partnership and were to bear the expenses and. losses in the same proportion. This partnership continued until the 3rd day of June, 1897, when the contract of partnership was dissolved by a contract, which was upon that day entered into between Bacon and Macpherson, and which, as appears from the written evidence of the contract executed by them upon that day, was as follows;
“June 3,1897,
“Byron Bacon, Esq.
“Esteemed Sir:
“My proposition in the matter of the firm of Bacon & Macpherson is that the firm will stand dissolved on and by the first day of June, 1897, you to attend to all of the business of the firm and that theretofore in which*777 I was interested by special employment, which came by, through or from your clients, I giving you my prompt and practical thorough co-operation and assistance therein as you may require, you to adjust and receive the fees and account to me therefor as I may be entitled thereto under our partnership agreement and our agreement theretofore; I to attend to all business of the firm or that in which I had theretofore and in which you were interested, which came by, through or from my clients, including the Green county bond cases and the R. N. I. & B. R. R. Co. cases, and adjust, collect and receive the fees and account therefor to you in like manner as above. Individual names of the firm are to be signed to all records where the partnership name has theretofore been signed, I forthwith to surrender up to you the office.
“(Signed) Ernest Macpherson,”
“Col. Ernest Macpherson,
“Esteemed Sir:
“The above proposition is hereby accepted.
“(Signed) Byron Bacon.”
It should be stated in explanation of the references in the above writing to causes in which either of these parties was interested before the creation of the partnership, that previous to that time, they occupied the same office and gave assistance in cases in which either of them was engaged and desired the services of the other under contract, which applied only to the particular case.
The action of Sidebottom against Green county, which was mentioned in the contract of the attorneys with Green county, was dismissed without prejudice to a future action by the plaintiff in the suit. The case of Thomas and others against Green county, mentioned in the contract and which was pending in the Federal court, was decided by that court in favor of the county, but upon appeal to the Circuit Court of Appeals, the judgment was reversed and the case decided adversely to the county. Hence, in neither of these actions was anything saved to the county by the services of the contracting attorneys.
Thereafter, in 1899, one Quinlan instituted a suit in the Federal court for the district against Green county to recover upon certain of the bonds, and this case upon
At the time, the partnership of Bacon & Macpherson was dissolved and the contract of dissolution entered into, there was pending in the Green circuit court, an action by one Shortell against Green county to recover a judgment upon certain of the bonds and coupons. This suit „was instituted in 1895, but nothing appears to have been done in it, until in March, 1898, when an answer was filed, which was signed by Macpherson, Lewis and Towles as attorneys. The case was dismissed in the Green circuit court because of a want of prosecution of it by the plaintiff. Shortell appealed to the Court of Appeals and secured a reversal of the judgment. Upon its return to the circuit court an amended answer was filed by Macpherson and Lewis, as attorneys, but a demurrer was sustained to the answer, as amended, and a judgment rendered by the circuit court, in favor of Shortell, adjudging him a recovery upon the bonds sued on. An appeal from the judgment was taken by the county to the Court of Appeals and upon this appeal the judgment was reversed, it being decided that the county was not liable for the payment of any of the bonds or coupons issued in aid of the construction of the railroad, and upon the case being remanded to the circuit court, the petition was dismissed and thereafter all other suits pending, by persons owning bonds, and, who resided within the state of Kentucky, were dismissed.
Thereafter, Lewis and Macpherson instituted an action in the Green circuit court against the county to recover of it the compensation claimed to be due them under the contract of November 15th, 1894, and the litigation resulted in the recovery of a judgment by them against the county for the sum of $28,230.00, with interest thereon from the second day of December, 1912.
Byron Bacon died, testate, on the first day of April, 1900, and this action was instituted by the executor of his will to recover of appellant, Macpherson, three-fifths of the fees received by him for defending the suits against Green county heretofore mentioned. It appearing that no part of the judgment recovered by him against Green county had been paid, the court adjudged that he should assign to the executor of his deceased partner three-fifths of one-third of the recovery by the judgment, and from that judgment he has appealed to this court, while the executor of Bacon has prayed a cross-appeal and insists the court should have adjudged, that the appellant transfer three-fifths of one-half of the judgment against Green county to the executor, instead of three-fifths of one-third of it.
(a) Pending the negotiations between the members of the firm of Bacon & Macpherson for a dissolution of the partnership a letter was written by Bacon & Macpherson and two letters by Macpherson to Bacon. These writings were set up by appellant, in his answer,, as part of the contract of dissolution, but the court sustained a motion to strike them from the answer and of this appellant complains. True, agreements in writing, executed at the same time, between the same parties and relating to the same subject matter, will be considered to make one contract, for the purpose of determining the meaning of the parties, though the agreements are contained in several instruments and though they do not bear the same date nor be absolutely contemporaneous
Several other grounds of reversal are urged,- which will be considered in their order.
(1) It is contended that the contract with the fiscal court, dated the 15th day of November, 1894, was the only employment of Bacon & Macpherson, by Green county, and that such contract did not employ the partnership in the suits of Shortell against Green county and Quinlan against Green county, and that such were the only
(2) It is insisted by appellant, that Bacon’s estate is not entitled to any portion of the fee, because Bacon withdrew from the cases, when the partnership was dissolved, and rendered no further services therein. This would doubtless be a sufficient answer from the county; if Bacon had simply refused to perform his contract with the county, without any justifying circumstance and then sought a recovery from it. So far as fhe county was concerned, the dissolution of the contract of partnership did not relieve Bacon from the covenants, which the firm had made to the county, as long as he lived, and the contract of dissolution does not indicate that Bacon intended to abandon the contract with the county and fail to perform it, in the event, that appellant failed to perform it. This defense could not avail appellant, because the county acquiesced, in the appellant performing the contract for his firm and appellant was doing so, under a contract with the partnership to the effect, that he would perform the obligations of the contract with reference to the “Green county bond cases” and would collect and pay to Bacon the portion of the fees to which he was entitled under tbe partnership contract, in consideration of Bacon performing the partnership contract and previous contracts made by them individually with other parties and collecting and paying to appellant the portion of the fees, to which he was entitled, under the partnership contract and previous contracts.
(3) It is, also, insisted that before the fees due from Green county had. been earned, Bacon died, and the contract of employment, as attorneys being a personal one, that the contract with the county thereby terminated and that the services rendered for the county, which represented the fee, a portion of which is sued for, was earned by the appellant under a later contract, with which the decedent, Bacon, nor the firm of Bacon & Mac
“When a party employs a firm of lawyers to represent him and one of them dies he is entitled to have the services of the surviving member, and if he is not satisfied with the ability of the surviving member to manage his case and feels that he ought to have additional counsel to take the place of the deceased member of the firm, he should make this request in seasonable time, etc.”
One who, however, engages a firm of lawyers is entitled to the personal services and skill and ability of both, and if one should die the client may terminate the contract, but will be required to pay the value of the services up to that time, as upon a quantum meruit, where such rule is applicable. Hence, after- the death of Bacon the county of Green was entitled, under its contract, to have the services of appellant, if it desired or it could have declared the contract at an end, but when it agreed to or acquiesced, as it did, in the performance of the firm contract by appellant, the contract did not
(4) It is, also, contended by appellant, that, in as much as all the actions, which owners of the bonds and coupons brought against Green county, were either decided against the county or were dismissed without prejudice or else dismissed by the court for some reason, neither of them affected or controlled the liability óf the county or saved the county from any liability, except the cases of Quinlan against Green county and Shortell against Green county, and that the first of the two latter cases was decided adversely to the county in the Federal Circuit Court of Appeals and the latter case was decided against the county in the circuit court of Green county; that the contingent fee, which is now the subject of this action, was not earned by appellant under the contract of Bacon & Macpherson with the fiscal court, as that contract ended with the adjudications above mentioned, and but for the appeal to this court, in the Shortell case, and the writ of certiorari in the Quinlan case there would have been no saving of the. county from liability upon any of the bonds or coupons, and hence the contingent fee provided for under the contract with the fiscal court was never earned by any one. True, at the common law it was held that the authority of attorneys, who represented the parties in the original suit, if the authority was of the ordinary kind, it was: at an end, when the first judgment was rendered, except, that the attorney for the plaintiff had the right to enforce the judgment for a year and a day. Holbert v. Montgomery’s Heirs, 5 Dana 11. It was held in Richardson v. Talbott, 2 Bib, 382, that a scire facias and a writ of error to reverse a judgment, whether from the same or a superior court, had always been deemed actions, which the attorneys obtaining the judgment could
A sufficient answer, it seems, to all of the foregoing grounds of reversal, is that in the petition filed by appellant and John W. Lewis' against Green county for . the recovery of the judgment for the fees in controversy, the contract of Bacon & Macpherson with the Green
(b) The contention of appellee that the judgment should have been for three-fifth's of one-half of the judgment of Lewis and appellant against Green county, instead of three-fifths of one-third of it, is not tenable The original contract and the only one under which appellee could make any claim entitled the firm of Bacon & Macpherson to only one-third of the contingent fee earned. The fact that after the death of Bacon, Towles, by- an arrangement with the fiscal coaart, was released from any further obligation lander the contract to continue the defense of the county, and then transferred or assigned his interest under the contract to the appellant and John W. Lewis would not increase the rights of appellee, as the representative of Bacon, to an additional amount of the fee, because the assignment of Towles was not to the firm of Bacon & Macpherson, but to Macpherson and Lewis.
The judgment is therefore affirmed upon the original and cross appeals.