45 So. 856 | Miss. | 1907
delivered the opinion of the court.
The appellants sent their claim against one Allison to Snow, Church & Co., a general collection agency. Snow, Church & Co. forwarded it for collection to the appellee, who was an attorney at law. In forwarding their claim it is manifest that they stipulated for a fee of ten per cent to be charged for the collection. In this condition of things it is plainly the law that the attorney could not charge more than that per centum for making this collection. If he saw that there was to be an unusual amount of labor performed, so as to make the per centum incommensurate with the labor and trouble involved, it was his
The attorney at once instituted suit in favor of the owners of the claim against Allison and got a judgment by default for about $114. Being unable, as he says, to realize by an execution against Allison, he was compelled to garnish the railroad company, which he did. On this proceeding of garnishment he effected a compromise by which he received $105 and agreed that he or his clients should pay the costs, and this bound his clients. This $105 was paid to him, and out of it he paid these costs. The net result of the compromise, after paying the costs, was the sum of $98. He had not consulted his clients about compromise. He had not obtained their consent to it, but gave a receipt, as attorney for his clients, in full of the claim for the compromise money. Thereupon he forwarded to Snow, Church & Go. one-half of the net result, reserving fifty per cent of it for his own compensation. Of all this there can be little doubt from the whole record. His clients refused to receive what he sent, and returned the fifty per cent to the attorney who had forwarded it. The attorney then testified that he returned the money which he had received in compromise of the Allison claim to Allison himself, and wrote his clients that they were at liberty to proceed to get the money as they saw fit. There is no showing as to whether the judgment had been marked “ Satisfied” or not. It is not shown that his clients objected to the compromise, but it seems plain that their objection was confined to the fifty per cent fee. The appellants, who were the owners of the claim and for whom he had sued and got judgment, thereupon brought suit against him for the amount of the compromise money, less the stipulated rate per centum for collection. He had no right on the evidence to return this money without authority, and it was his duty, on being sued personally, to have set up the matters he urges as a defense in the proof. The amount sued for by his client was liable to be re
With the record, fairly considered, presenting this state of facts, we hold that a peremptory instruction to the jury to find for the defendant cannot be sustained.
Revised and remanded.
