Stearns v. Felker

28 Wis. 594 | Wis. | 1871

LyoN, J.

Action for money bad and received. Tbe complaint avers tbat tbe defendant is a practicing attorney; tbat on tbe 15th of October, 1869, be received from Bray and Armstrong eight hundred dollars to tbe use of tbe plaintiff; tbat due demand of payment thereof bad been made; and tbat tbe defendant has paid over but three hundred and sixty dollars of tbe said eight hundred dollars. This action is to recover sucb unpaid balance.

Tbe answer oí tbe defendant admits tbat be is a practicing attorney; tbat tbe plaintiff made tbe demands alleged in tbe complaint; and tbat be paid tbe plaintiff three hundred and sixty dollars; and denies all of tbe allegations of tbe complaint not therein admitted.

It appeared on tbe trial tbat tbe defendant prosecuted a claim for some logs against Wheeler and Raymond, as attorney for tbe plaintiff, and ultimately recovered judgment not only against Wheeler and Raymond, but also against said Bray and -Armstrong, who, by becoming sureties for Wheeler and Raymond in tbe progress of tbe suit, bad rendered themselves liable to have judgment go against them therein. Tbe bill of exceptions does not show tbe amount or character of tbe judgment so recovered, but it appears tbat tbe eight hundred dollars mentioned in tbe complaint was paid to tbe defendant by Bray and Armstrong for tbe purpose of procuring a release of their liability upon such judgment. Such payment, as a matter of course, applied upon tbe judgment. It was a payment of a part or tbe whole thereof, tbe same as though Wheeler and ^Raymond, tbe principal defendants in tbat action, bad paid eight hundred dollars thereon.

Tbe plaintiff testified on tbe trial tbat there was a special agreement made between tbe defendant and himself in relation to tbe prosecution of tbat action, by which tbe defendant was to carry through tbe suit, pay all tbe expenses, and have one-half of tbe judgment. \

Tbe defendant claimed, and tbe learned county judge held, tbat such agreement was champertous; and on motion of tbe defendant, tbe court nonsuited tbe plaintiff. Judgment of non-suit and for costs was perfected and entered against tbe plaintiff, from which be has brought bis appeal to this court.

Tbe agreement between tbe parties was clearly champertous. Champerty is nothing else than an agreement to aid in a suit and then to divide tbe thing recovered. This agreement was to prosecute tbe action, pay tbe expenses, and divide tbe fruits of tbe litigation.

But it does not by any means follow that because tbe agreement was cbampertous, tbe plaintiff should have been non-suited. There is almost or quite an unbroken line of authorities which hold that although attorney and client may have entered into an agreement in respect to the compensation for the services of the former, which is void for champerty, yet the attorney does not thereby forfeit his right to full compensation for his services, nor the client his right to the fruits of the litigation after paying for such services what the same are reasonably worth. Such is undoubtedly the law, and it harmonizes with the plainest principles of justice. These remarks are only intended to apply to a case where the relation of attorney and client, or some similar relation of trust and confidence, exists between the parties to the illegal contract.

The following are some of the cases which hold the doctrine above stated: Thurston v. Percival, 1 Pick., 415; Rust v. Larne, 4 Littell, 425; Merritt v. Lambert, 10 Paige, 352; Same Case, 2 Denio, 607; Berrien v. McLane, 1 Hoff., 421, and the numerous cases, both English and American, there cited. See also Ford v. Harrington, 16 N. Y., 285.

It follows that the plaintiff should not have been nonsuited at the trial, but he ought to have recovered the balance of the $800 received by the defendant of Bray & Armstrong, after deducting therefrom the $360 paid to the plaintiff on account thereof, and a reasonable compensation for the services of the defendant as the attorney for the plaintiff in the former action; 'provided that there remained a balance in his favor after making such deductions.

It is, perhaps, scarcely necessary to say, that if the plaintiff shall succeed, on the future trial of the action, in proving, as he attempted to prove on the former trial, that the contract was not ehampertous, then, of course, the terms of the contract must control the verdict. In such case the plaintiff must be held to pay for the defendant’s services whatever sum he agreed to pay therefor.

By the Gourt. — Tbe judgment of the county courtis reversed, and a new trial awarded.