Freeman v. Shreve

Mr. Justice Sharswood delivered the opinion of the court, It is undisputed and indisputable from the testimony of the plaintiff below himself that he was retained by Mr. Freeman, on behalf of his wife, “to secure the safe custody of the estate of Isaac Brown Parker and his wife’s interest, and take it out of the hands of John Brown Parker. He (Mr. Freeman) said, ‘ If you will do that we will give you $5000.’ ” This, then, was the contract on the plaintiff’s own showing. All the services which he could or did render to the estate were clearly within the scope of his duty under this undertaking. Had he failed in taking any steps which were necessary to secure the general fund, he would [138] have been derelict in his duty, and responsible to Mrs. Freeman and nobody else for any loss which she might sustain t>y his neglect. He would not have been responsible to the other claimants upon the fund, for he owed them no duty. He could in no event have called upon them for compensation, though in attending to and protecting the interest of Mrs. Freeman he was at the same time attending to and protecting theirs. All that he did in the cause was under and by virtue of his retainer as solicitor of Mrs. Freeman. It does not appear that he was retained or acted as solicitor for any other party to the cause. His services then were rendered under his contract to secure the safe custody of the estate and Mrs. Freeman’s interest. No part of the $2500 which he received by the order of the chancellor, was for services rendered to anybody else but Mrs. Freeman. She was the owner of the seventh of the general fund, and to protect her seventh as long as it was undivided it was necessary to protect that general fund. To treat the services of the solicitor to the general fund as something distinct from arid independent of his services for his client, as one of the joint owners of that fund, as was done by the learned judge below, we think was an error calculated to mislead the jury from the true question— the contract that the plaintiff was to receive $5000 in full for all his services in the cause. It is true that a chancellor will, out of a fund for distribution, order compensation to the counsel engaged, in his sound discretion, according to his estimate, of what they reasonably deserve 'to have. He will often order such compensation to the counsel of a losing party who is decreed to have no interest, on the equitable ground that being a necessary party he was compelled to litigate, or had sufficient reason. It is a charge which the fund ought in equity and good conscience to bear. But whatever the counsel thus receives ought to be regarded as a credit in account between him and , his client. Let us take the case of a general retainer without any contract for a certain sum, and a suit is after-wards brought on a quantum meruit. Surely it will not be pretended that the amount received under such an order would not be admissible in evidence to reduce or satisfy the plaintiff’s claim. When, therefore, there is a special retainer, and the solicitor is to do all that is required for a sum certain, the client is entitled to a credit for whatever he may receive from any other source growing out of the same employment. The offer to credit Mrs. Freeman with one-seventh of the $2500 is no answer to all this. If the contention of the defendant in error is sound, she -has no right to this much even. Of the whole $12,500 paid out by the chancellor’s order one-seventh was from Mrs. Freeman’s share. Why Mr. Shreve was allowed a greater proportion than this we know not, nor is it material in this controversy. What is material and all that is material is that Mr. Shreve acted as solicitor for Mrs. Freeman and nobody else, and by special contract was to receive $5000 [139] for all his services and no more. It is clear then that Mrs. Freeman was entitled to a credit for the whole sum of $2500 which he had received. Judgment reversed and venire facias de novo awarded. A motion for a re-argument was subsequently made by defendants in error, which the court refused.