20 Haw. 146 | Haw. | 1910
Lead Opinion
OPINION OP THE COURT BY-
Tbm was an action to recover $626.07 expended by the plaintiff for costs and attorney’s fees in the appeal to the. United States supreme court from a decree in this court in a suit in equity brought against him by one Maile to obtain a reconveyance of certain land that plaintiff had bought at an execution sale.' The plaintiff appointed the defendant as his attorney in the suit and made an agreement with him October 19, 1906, that the defendant, in consideration of the plaintiff’s conveyance to him of a portion of the land, would defend the suit and pay the costs. The decree made by the trial court in favor of Tan Gieson was reversed by this court. The defendant declined under his agreement to appeal the case to the United States supreme court, whereupon the plaintiff engaged another attorney for the purpose paying $309.42 attorney’s fees, $313.10 costs of court, $22.50 for printing brief and $7.05 for cabling in the case. The defendant paid only $25 of the costs on appeal. The plaintiff claimed at the trial that the agreement was ambiguous or equivocal in its expression of the duty of the defendant to attend to an appeal from the decree of this court, and for that purpose introduced parol testimony tending to show that the defendant admitted that it required him to do this. The jury rendered a verdict for the plaintiff for the amount claimed. Exceptions were taken by the defendant to the admission of the evidence explanatory of the written agreement, denial of his motion for a directed verdict, refusal of the court to instruct the jury in accordance with his theory of the case, namely, that the agreement was unambiguous and clear, requiring no appeal by Tan Gieson to be taken
The defendant submits that the agreement is void for champerty. This was presented as one of the grounds of the motion for judgment non obstante. It appears to be of a champertous nature which would make it illeg'al and void at common law. In Mossman v. Hawaiian Government, 10 Haw. 421, 434, 435, 436, the court held that it “is at least questionable” whether a conveyance by a disseizee to a third party is void as to the disseizor by the common law of England as ascertained by English and American decisions, but that “the doctrine contended for, if common law, is within the exception of the statute as otherwise fixed by Hawaiian judicial precedent or established by Hawaiian national usage.” In Pechell v. Watson, 8 M. & W. 690, the syllabus mentions maintenance as “a wrongful act at common law,” and the statutes relating to maintenance as “declaratory of the common law,” but this statement does not appear in the opinion. “It has always been considered, however, that champerty and maintenance are of-fences at common law and that the statutes only declare the common law, with additional penalties (Pechell v. Watson (1841), 8 M. & W. 691; Partridge v. Strange (1552), Plowden, 77, 88).” Laws of England (1 Halsbury) 52. “This was an offense at the common law.” 2 Coke’s Littleton, 368. b. The Mossmcm case may, however, rest safely upon the ground that the common law on the subject of livery of seizin never prevailed here. It was said in Henrique v. Paris, 10 Haw. 408, 413, with reference to the common law rule of the non-assignability of a right of entry: “There is not now and here the necessity that there was in England in the Middle Ages for laws against champerty and maintenance to prevent the stirring up of suits for purposes of oppression, nor any
The conditions of society under which the law of maintenance and champerty originated no longer exist. The common law of England is declared to be the law of Hawaii “except as otherwise expressly provided by the Constitution and laws of the United States, or by the laws of the Territory of Hawaii, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage.” Sec. 1 R. L. That portion' of the law of champerty which relates to the assignability of choses in action and conveyances by disseizees is otherwise provided for and fixed by precedent and usage and in part by legislation.
The contract is not unlawful because against principles of law in force here, nor is it a contract to do anything which is prohibited by statute or which is immoral. There is no generally acknowledged public policy against such contracts. Probably more frivolous and groundless suits are brought without any agreement for attorney’s fees than under such agreements. If an attorney undertakes to pay the costs he is more likely to do so in a meritorious case than in one devoid of merit. If he takes advantage of his superior knowledge and of the client’s poverty to obtain an unfair arrangement for sharing in the proceeds of the litigation the client’s remedy at law or in equity is ample.
It is not the practice of attorneys of recognized standing to encourage frivolous litigation. We believe that the “ambulance attorney” is not yet in evidence here and it is to be hoped that he never will be. But the promoter and stirrer up of strifes may at any' time exist and is not abated by laws of maintenance and champerty.
We will next consider the meaning and legal effect of the agreement which is worded as follows:
“That said Van Giesen hereby appoints said Magoon and such persons as he may substitute for him or associate with him, attorney or attorneys in the case of C. B. Maile against said Van Giesen and another now pending in the circuit court of the first judicial circuit.
“In case said suit is decided in favor of said Van Giesen in the court of last resort to which the same may be appealed, he shall deed to said Magoon all of the land on Alakea street in Honolulu, Oahu, purchased inter alia by him at sheriff’s sale on judgment recovered for taxes against said Maile, said land to be free from all encumbrances made or suffered by said Van Giesen; and upon the delivery of said deed to said Magoon, he shall pay the said Van Giesen five hundred and thirty-five dollars with interest thereon at the rate of eight per cent per annum from the 5th day of July, 1904. Said Van Giesen is to forthwith execute a deed of said land to said Magoon and deliver the same to J. Lightfoot, he to hold it in escrow until the "termination of said suit. And in case it shall be terminated in favor of said Van Giesen, to deliver to said Magoon said deed upon the payment by him of said sum of five hundred and thirty-five dollars with interest thereon as aforesaid.
“Said Magoon is to defend free of charge said pending suit and any other suit that may be brought by said Maile or any one claiming under him, and in case judgment shall be against said Van Giesen, shall appeal the same to the Supreme Court of this Territory, and in case judgment shall be in favor of said Van Giesen in the ¡trial court and shall be appealed by the adverse party, said Magoon shall defend such suit to the court of last resort to which the same may be appealed. Said Ma-goon is to pay all costs of court that shall accrue after this date against said Van Giesen in said pending suit.
“Said Magoon agrees in case said pending suit shall be finally decided in favor of said Van Giesen to pay to said Van Giesen three-quarters of the rents now due from said Magoon, on account of said land, provided said suit shall not be appealed further than to the Supreme Court of the Territory of Hawaii,
“Said Magoon agrees to pay the mortgage notes for three hundred and fifty dollars and one hundred and sixty dollars heretofore given by said. Van Giesen and take an assignment of said notes and the mortgages secured thereby in case the mortgagees shall attempt to force payment of the same provided said Van Giesen shall keep the interest of said mortgage promptly paid; and in case of such assignment to said Ma-goon, he will hold the same, provided the interest shall be paid as aforesaid until the final determination of said pending suit.”
The plaintiff’s object in entering into this agreement was to hold the title obtained at the execution sale as against the claim of Maile “or any one claiming under him,” and the defendant was interested in securing for the plaintiff this land of which he was to have a part deeded to him by the plaintiff for the professional services of himself “and such persons 'as he may substitute for him and associate with him” in defending the suit and for “all costs of court that should accrue against Van Gieson in said pending suit,” which the defendant was to pay. Under such circumstances an agreement to defend the suit generally would not be limited to its defense in the trial court. In other words, this would not be like a retainer for that court only requiring a further retainer on appeal whether by one side or by the other. There is no reason why in an agreement to defend the suit the defense should stop with an adverse decree in this court any more than with an adverse decree by the trial court. There is nothing in the prior or subsequent parts of the agreement which limits the defense to any court in which it could be made. The provision requiring an appeal to this court from a judgment against Van Gieson and that Magoon shall “defend such suit to the court of last resort to which the same may be appealed,” if Van Gieson should obtain judgment in the trial court and Maile should appeal, does not limit the defense to those instances, especially when the
Magoon agreed to defend the suit against Van Gieson, which
Taking into consideration then the object of the agreement and of its provisions we think that it required Magoon to conduct Van Gieson’s appeal to the supreme court of the United States -and to pay all the costs of court therein. This view of the agreement dispenses with consideration of the admissibility of evidence to explain its meaning or of the correctness of the instructions given in the view that the agreement contained an “equivocation,” since the error of admitting the evidence and giving the instructions was not prejudicial to the defendant, for the only alternative would have been, upon rejecting the evidence, to instruct the jury that the agreement required the defendant to conduct -and pay the expense of the appeal. It follows that the instructions on the parol evidence rule asked by the defendant were properly refused.
The defendant claimed that he was released from any agreement to conduct an appeal to the United States supreme court by reason of the plaintiff’s refusal to take his advice to accept a compromise of $1800 offered by Maile. But the duty of an attorney to carry, out an ag’reement to defend a case is not discharged because his advice to compromise it is not taken.
The defendant further claimed that there was no evidence of the value of the services of the attorneys engaged by the plaintiff. The plaintiff’s right was to engage another attorney to perform the service which the defendant had agreed but declined to perform and the defendant would be liable for any reasonable expenditure incurred for the purpose. The reasonableness of the attorney’s fees would not be determined by the result of the ease nor be affected by a showing that another attorney would have charged a lower fee.
The declaration is in code form and its caption does not set forth the name of the action, indebitatus assumpsit, upon the defendant’s agreement, implied by the law, to recoup the plaintiff for his reasonable expenditure in securing the agreed defense. It was not a question of the value of the professional services for which the plaintiff paid, but simply whether they were reasonable in amount. In addition to the showing of their payment and of the kind and nature of the service performed, namely, preparing a brief in the case, it was requisite in the opinion of a majority of the court that there should be evidence that the fees were appropriate for such services.
Unless the sums paid for attorney’s fees, amounting to $300, shall be remitted by the plaintiff within five days a new trial is granted. The exceptions relating to the fees are sustained.
Concurrence Opinion
CONCURRING OPINION OP
I concur in the foregoing opinion, but on two of the subjects under consideration shall' state more at length my reasons for my concurrence.
Champerty and maintenance have been variously defined in the books, ancient as well as modern. Courts and text writers seem to have found some difficulty in stating precisely what they consisted of in England. Perhaps the following definition comes as near as possible to stating the generally accepted view on the subject. Champerty (campum partiré, to divide the land) is “a bargain with a plaintiff or defendant in a suit for a portion of the land or other matter sued for in case of a successful termination of the suit 'which the champertor undertakes to carry on at his own expense.” — Bouvier. Maintenance is “a malicious or at least officious interference in a suit in which the offender has no interest, to assist one of the parties to it against the other with money or advice, to prosecute or defend the action without any authority of law.” — Bouvier.
There were old English statutes defining champerty and maintenance and making them punishable offenses. Whether or not- and to what extent champerty and maintenance were offenses under the unwritten law of England existing prior to' the enactment of those statutes is a matter upon which the authorities are not agreed or at least some doubt is expressed here and there that they were offenses. The supreme court of the United States, in Peck v. Heurich, 167 U. S. 624, 629, 630, said: “According to the common law as generally recog
So, also, for the same reason, it is unnecessary to determine in this case whether the “common law” of England which by Sec. 1 of the Revised Laws is made law in Hawaii includes early English statutes such as those mentioned above. In Rooke v. Queen's Hospital, 12 Haw. 375, 380, the court suggested the possibility of the question but expressed no opinion upon it. No definite decision upon it has been rendered as far as I know.
Before considering whether or not the common law of England relating to champerty and maintenance in general and to contracts such as that under consideration in particular is by reason of the provisions of Sec. 1 of the Revised Laws in force in this Territory, it may be well, assuming for the moment that such is not the case, to consider whether as a matter of public policy such contracts ought to be declared void.
In olden England such contracts were deemed to be contrary to sound public policy because it was believed that if they were permitted the result would be to encourage and facilitate the stirring up of unworthy litigation. Various considerations contributed to this view. In the first place, judges as a rule
In some of the states, by reason of provisions of their fundamental laws, the common law rule on this subject has been declared to be the law in those jurisdictions. In still other states where the common law has been held as such not to be in force, the same rule in milder and modified form has been declared to exist as a requirement of public policy. In these the argument generally indulged in is, in brief, that to permit
This reasoning does not appeal to me. I recognize that a majority, perhaps a great majority, of the state courts have taken the view that such contracts are contrary to public policy. Key v. Vattier, 1 O. 132, 143; Boardman v. Thompson, 25 Ia. 487; Adye v. Hanna, 47 Ia. 264; Gammons v. Johnson, 76 Minn. 76; Moreland v. Devenney, 72 Kans. 471; Thurston v. Percival, 1 Pick. 415; Martin v. Clarke, 8 R. I. 389, 401; Re Evans & Rogers, 22 Utah, 366; Allard v. Lamirande, 29 Wis. 502; Hamilton v. Gray, 31 Atl. (Vt.) 315; Lytle v. State, 17 Ark. 609, 663; Gilman v. Jones, supra. I prefer the reasoning of the minority. Hassell v. Van Houten, 39 N. J. Eq. 105, 109; Schomp v. Schenck, 40 N. J. L. 202; Manning v. Sprague, 148 Mass. 18, 20; Bentinck v. Franklin, 38 Tex. 458, 472-474; Mathewson v. Fitch, 22 Cal. 86, 94; Reece v. Kyle, 49 O. St. 475, 480-488; and, particularly, the brief of plaintiffs’ attorneys in Key v. Vattier, 1 O. 132, 135-142. The latter appeals to me as being sound and more in keeping with the progress of society in general and of the administration of justice in particular, and with the development of commerce which has ensued since the days in which the rule had its origin. There is nothing inherently wrong or immoral in such contracts. They are not mala in se. The feudal system no longer exists. There is no class of powerful lords on the one hand and of ignorant poor on the other in danger of being crushed. The administration of justice is in safe hands and any aTuse
Among the reforms in England and in this country occurring since the date of the acts relating to champerty and maintenance “may be mentioned, the enactment of the statutes for the limitation of actions, the statute of frauds, the extension of the action for malicious prosecution and that for awarding costs against unsuccessful parties. These changes have contributed materially to the discouragement of groundless and vexatious litigation.” Reece v. Kyle, 49 O. St. 475, 483.
If it is lawful for an attorney to conduct litigation upon a contract for purely contingent fees without agreeing to advance the cost of the litigation, if, in other words, liberty to make áuch an agreement does not tend to unduly encourage litigation, how much more true, it seems to me, that litigation is not encouraged where the attorney in addition undertakes to bear ■all the costs and expenses of the proceedings. In the latter instance he is running the risk of losing not only his own services but also his cash outlays, and this necessarily adds responsibility and tends to make him more cautious before advising his client to enter suit or to continue the proceedings. Even unscrupulous attorneys would ordinarily be moved by this consideration not to enter into the prosecution of a groundless claim or defense.
Again, this is an agricultural community. A large number of our population is composed of laborers, poor in this world’s goods, who at times receive bodily injuries in the course of their employment caused by the negligence of their employers. With them the denial of the right to enter into sirch contracts will often mean a denial of a remedy for their just grievances. Our courts are so administered that, I believe, unscrupulous lawyers will find but little encouragement for the prosecution of groundless claims, and defendants, more often
The right to make contracts of this particular kind should not be abridged or denied on any ground of public policy unless there is an evil clearly calling for a remedy. In my opinion there is no such evil, and therefore no justificaton for the declaration that such contracts are void as being contrary to public policy.
Let us return now to the second question above mentioned as to whether or not the common law rule is in force in this jurisdiction. Sec. 1 of the Revised Laws declares in part that “the common law of England as ascertained by English and American decisions is hereby declared to be the common law of Hawaii in all eases except as otherwise provided by the constitution or the laws of the Hnited States or by the laws of the Territory of Hawaii or fixed by Hawaiian judicial precedent or established by Hawaiian usage.” I think that the present-case falls within some of these exceptions. In part this is a case “otherwise expressly provided * * * _ by the laws of the Territory of Hawaii.” By Statute, choses in action, including rights of action, are now assignable. Part of the cause and theory sustaining the old common law rule is thus wiped out. Our statute is inconsistent with the old rule. Neither cham-
ing ceased the rule itself should also cease.”- While the court said this, it is true that it also said, “And there can be little doubt that lessors’ grantees have hitherto in these Islands acted accordingly and exercised the right of entry for breach of condition, although we do not know of any judicial proceeding directly upon the subject. * * * We are of the opinion that the old common law rule in question is not law here because it is 'otherwise established by Hawaiian national usage.’ ” In Rooke v. Queen's Hospital, 12 Haw. 375, 380, this court said, of Sec. 1, R. L., “And since the enactment of that statute the previous rejection of certain material parts of a system has been regarded as amounting to a rejection of other parts.” See, also, Wildey v. Crane, 63 Mich. 720, 724.
Perhaps the entering into contracts to bear the expenses of litigation has not been common amongst attorneys in this jurisdiction and yet there have been such contracts. Reputable
To summarize, then, on this particular subject, in at least two respects the ancient common law rule has been declared by Hawaiian judicial precedent not to be the law here. Some of the judicial utterances on the subject have been broader and would seem to justify the inference that the court in those eases regarded all of the common law on the subject to be inapplicable to Hawaii and not in existence here. In any event that which remains of the rule ought not to be considered as now in force in this jurisdiction. One at least of the rules which gave rise to the provision has been expressly negatived by local statute. Usage, as far as there is one,' is against it, and as we have seen in the discussion above the reasons for the rule do not exist in these Islands. For all of these reasons I am of the opinion that the common law on the subject is not in force in Hawaii and that the contract in question is not void.
The chief justice requests me to say that he fully concurs in the foregoing statement on the subject of champerty and maintenance.
The verdict of the jury read in connection with the evidence shows unmistakably that the jury awarded the plaintiff in addition to other items the sum of $250 as a fee paid to E. C. Peters and $50 as a fee paid to C. B. Hemenway, both of the bar, for professional services rendered. Evidence was given tending to show that the plaintiff paid these amounts to the two attorneys respectively, that to Peters being for preparing a brief in the Maile case on the appeal to the supreme court of the United States, and that to Hemenway being for obtaining from the records and officials in Washington certain information desired by Peters and cabling the same to him. The
In my opinion the evidence on this subject of fees was insufficient to support a verdict for the plaintiff. He did not sustain the burden which the law places upon him to prove the reasonableness of the fees paid.
Concurrence Opinion
CONCURRING OPINION OF
AVith regard to the validity of the agreement and the attorneys’ fees, 1 adopt the reasoning of Mr. Justice Perry. In all other respects I concur in the opinion of the chief justice.