12 La. Ann. 159 | La. | 1857
This is a suit for attorney’s fees, alleged to have been earned under a special contract.
The defendant denies that he employed the plaintiff.
The proof is that the defendant gave to one JDempsy P. Gain a power of attorney, “to sue or otherwise collect all his claims” against the estate of one Witherspoon, and agreed to divide the proceeds with him. This power of attorney implied the power to employ counsel and to stipulate fees to he paid out of the proceeds of the claims.
Cain, in pursuance of this mandate, employed J. M. Elam as an attorney to investigate the claims. He resided in Baton Rouge, and finding it advisable to institute proceeding in the United States Circuit Court at New Orleans, he made a special contract with T. ff. Morgan (of whom the plaintiff is assignee) to bring and conduct a suit in that court against Witherspoon’s representatives, for a fee of ten per cent, upon the amount eventually collected, contingent upon the collection. Morgan brought the suit and obtained a judgment in the Circuit Court at New Orleans. A writ of error was sued out from the Supreme Court of the United States, and the judgment of the Circuit Court was affirmed. The amount of the judgment ($14,000) and large arrears of interest has now been, realized. Out of the one-half going to Cain, Morgan was paid ten per cent, by Cain’s assignees. This suit is to recover the ten per cent, due upon Broion's half.
Both Cain and Brown were notified of the employment of Morgan to conduct the suit in Brown’s name before the Circuit Court. Their acquiescence is a ratification of his engagement by Elam.
Elam testifies that he contracted with Morgan for the contingent fee of ten per cent. It is urged that, as the sum exceeds five hundred dollars, this evidence is insufficient. We find a corroboratory circumstance in the fact that Morgan was paid ten per cent, out of Cain’s portion of the judgment by Gain’s assignees without opposition.
The plea of prescription is interposed. As the stipulated reward for the services was contingent upon the success of Brown in collecting the money, the fees were not exigible until the money was collected. This suit was brought immediately after the collection of Brown's share. Moreover, three years had elapsed since the voluntary payment of the first instalment on the part of Brown’s agent, through his assignee.
The fact that Brown employed other attorneys for special duties in collecting the money does not impair the claim of Morgan for compensation, for he was at all times ready to do whatever was requisite to he done in enforcing the judgment he had obtained in New Orleans.
This is not a case for damages as for a frivolous appeal.
Judgment affirmed.