Strohecker v. Hoffman

The opinion of the Court, filed was delivered by Woodward, J. This is an action brought to recover a sum of money received by the defendant, as attorney for the plaintiff, in a feigned issue with the Farmers’ Bank of Reading. The receipt of the money is admitted, but the defendant claims that he has applied it in accordance with an agreement entered into between the plaintiff and her sisters. The Court admitted the evidence offered of the agreement, and the jury found it, and, of course, if the Court were right in admitting the evidence, the plaintiff has no cause of action. The objections to the evidence of the agreement were threefold: 1. That the witnesses by whom it is to be proved are interested. 2. That, situated as they are, it is against the policy of the law to permit them to be witnesses. 3. That no consideration is shown for the agreement. To treat these objections in their order : — Were the witnesses, in the first place, incompetent on account of interest ? The witnesses to the agreement were Sarah Fisher, Susan Deem. [226] and Elizabeth Shannon, all of them sisters of the plaintiff. They were released by Mr. Hoffman from any liability over to him in the event of the plaintiff’s recovery; and since the true test of the interest of a witness is, that he may either gain oí lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action (1st Greenleaf, 390), it is difficult to perceive how the objection can apply to these sisters. Manifestly they can neither gain nor lose by the event of this suit, nor will this record be legal evidence for or against them. If they have received moneys which, ex cequo et lono, Mrs. Stroheoker is entitled to have, her right of recovery cannot be impaired by the result of the present action against their attorney. A principal is a competent witness for his agent, who has paid over money without notice: Seidel v. Peckworth, 10 Ser. & R. 442; and see the observations of Justice Rogers, in Cassady v. McKensie, 4 W. & Ser. 282; Burt v. Nichols, 16 Pic. 560. There is nothing in the objection to the competency of these witnesses on the ground of interest. The cases cited by the plaintiff in error, in support of the second objection to these witnesses, do not apply. They are not parties, either in form or fact, to this issue. Doubtless, the policy'of the law is to hold lawyers to strict integrity and accountability in dealing with the moneys of parties; but when several common clients make a distinct agreement for the guidance of their counsel, he must be permitted to show that he has walked in the prescribed path. And when one of the clients sues him for money recovered, it would be strange indeed <i£ he might not call in the other clients to prove that he had applied the money according to their agreement and instructions. A rule of evidence that would deprive a professional gentleman of this measure of protection, would punish him for, his fidelity and obedience. The third objection was in its nature applicable rather to the effect than to the competency of the evidence. To call upon the Court to reject proof of an alleged agreement, because it was not founded in sufficient consideration, was to precipitate the Court into a decision of the whole cause on a question of evidence. The proper course was that which the Court pursued, to admit the evidence, to give the jury suitable instructions as to what would make a valid agreement, and to leave to them the question whether such an agreement had been proved. The jury found the agreement alleged by Mr. Hoffman, and that he had applied the money recovered in accordance with it. Why was this not a conclusive defence to the plaintiffs’ action ? The only reason assigned here which is worthy of notice, is that which was urged upon the Court below for rejecting the evidence, that the agreement was void for want of consideration. The Court very properly said on this subject, in answer to the'plaintiff’s [227] points, that a failure of consideration, as among the sisters, would not affect their attorney, if be acted in good faith, and collected and paid over the money in pursuance of the agreement and the authority given him so to do. This is an action against the attorney for money collected, and the consideration of the agreement made by the sisters for the disposal of the money, was no further important than as it affected the attorney’s right to retain for himself the stipulated proportion. As between him and the sisters, his professional services were an adequate consideration for the agreement that he might retain half of the sum that should be recovered. Agreements fairly made between counsel and clients are as obligatory as between other parties; and when a desperate claim has been successfully asserted by counsel, on the faith of an agreement that one-half of the recovery shall reward his skill and diligence, it is an ungracious' plea to urge that the agreement was without consideration and void. The alleged agreement having been found by the jury, and, so far as this defendant is concerned, the consideration of it appearing to us to have been adequate, it makes an end of the plaintiff’s case, and obviates the necessity of going through the other assignments of error. -The judgment is affirmed.