Rickel v. Chicago, Rock Island & Pacific Railway Co.
112 Iowa 148 | Iowa | 1900
Sherwin, J.
2 The notice of appeal served herein was entitled “Eickel, Crocker & Christie, Plaintiffs, v. Chicago, Eock Island & Pacific Eailway Company, and O. D. Goodrich, Administrator of the Estate of L. H. Goodrich, Deceased, Defendants.” It was properly directed, and stated: “You are hereby notified that the Chicago, Eock Island & Pacific Eailway Company have appealed from the judgment rendered in the above entitled action.” It also named the venue and date of the judgment. It was signed, “Carroll Wright, E. E. Cook, T. B. Hanley, Attorneys for the C., E. I. & P. Ey. Co.,” and. service thereof was accepted by the plaintiffs. The claim that there is no notice of appeal because of the use of the initials above given, cannot be sustained. The title of the cause and the statement in the body of the notice that the defendant railway company appealed, indicate so clearly that the letters following the names of the attorneys are the initial letters *152of the company’s name, and are intended to mean and do mean, tlie “Chicago, Rock Island & Pacific Railway Company,” the defendant in the case, that no citation of authorities is necessary to sustain the holding that the notice is sufficient.
3 The notice of appeal was served December 24, 1898, 'for the Play, 1899, term of this court. The abstract was served and filed Play 15, 1899. Plaintiffs, in a motion to dismiss and affirm, urge that the abstract was not filed as early as required by the statute. "We have held otherwise in the recent case of Hanson v. Hammell, 107 Iowa, 171, and the motion is overruled.
4 The plaintiff’s cause of action, as stated in their petition, is based solely upon the contract made with O. D. Goodrich as administrator, and upon the services rendered him as such. If this contract was an invalid one as to the estate, the plaintiffs cannot recover thereon. The contention of the appellant is that the administrator had no power or authority to enter into such a contract on behalf of the estate, and that he alone is bound thereby. That the weight of authority fully sustains this position must be conceded. It is the general holding that an estate cannot be bound by the contract of an executor or administrator, and that no action at law can be maintained against him thereon in his representative capacity. Schouler, Domestic Relations, sections 256, 397; Austin v. Munro, 47 N. Y. 360; Barry v. Lambert, 98 N. Y. 308; Taylor v. Mygalt, 26 Conn. 184; Adams v. Adams, 16 Vt. 228; Rich v. Sowles, 64 Vt. 408 (23 Atl. Rep. 723, 15 L. R. A. 850) -Vanderveer v. Ware, 65 Ala. 606; Davis v. French, 20 Me. 21; Succession of Mansion, 34 La. Ann. 1246; Ness v. Wood, 42 Minn. 427 (44 N. W Rep. 313) ; Perry v. Cunningham, 40 Ark. 185; Higgins v. Driggs, 21 Fla. 103; McFarlin v. Stinson, 56 Ga. 396; Winter v. Hite, 3 Iowa, 142; Dunne v. Deery, 40 Iowa, 251; Johnson v. Leman, 131 Ill. 609 (23 N. E. Rep. 435, 19 Am. St. Rep 63, *153note). While it is entirely proper to employ attorneys to counsel and assist in the settlement of an estate, “the duty of compensating them rests primarily on the executor or administrator.” Clopton v. Gholson, 53 Miss. 466; Wait v. Holt, 58 N. H. 467; Thomas v. Moore, 52 Ohio St. 200 (39 N. E. Rep. 803). Nor does the fact that the services arc beneficial to the estate change the rule. Tucker v. Grace, 61 Ark. 410 (33 S. W. Rep. 430). The compensation of an attorney cannot, therefore, be fixed as against the estate by an express contract with the administrator. Consequently the contract in this case, which provides for a contingent fee, connot be enforced against the estate. In re Paige’s Estate, 57 Cal. 241; and see, also, Danielwirlz v.Sheppard, 62 Cal. 339; Teal v. Terrell, 48 Tex. 509; Platt v. Platt, 105 N. Y. 488 (12 N. E. Rep. 22). It is manifest that, if the contract cannot be enforced against the estate, no lien which the law would give arising from it would be of any validity, because the administrator cannot by any act of his create a lien against the estate. Nor could the administrator subsequently ratify the contract so as to bind the estate. The final determination of the amount which he shall be allowed as compensation for the services of Lis attorneys is a matter entirely for the court. It follows from what has been said that the court erred in directing the jury that the contract between the plaintiffs and the administrator was a valid one, and that the value of the plaintiff’s services must be determined by the amount therein fixed.
5 The court further erred in instructing that there was due plaintiffs, by the terms of the contract, the sum of $1,750. The contract provides that the plaintiffs are to receive one-lialf of the sum recovered, “either by suit or settlement,” unless it shall be made to appear that their services were reasonably worth more. Under this contract, recovery was limited to one-half the amount actually received, in the absence of evidence as to value. The instructions were in direct conflict with the holding in Win-*154slow v. Railway Co., 71 Iowa, 197, and in Parsons v. Hawley, 92 Iowa, 175.
6 We think the contract was not champertons. For the reasons heretofore stated, the case is reversed.
