Hall v. Kimmer

Sherwood, J. The action in this case is assumpsit, brought before a justice of the peace. The plaintiff’s declaration was verbal, upon all the common counts; and added thereto was a special count on a contract for services of the plaintiff in obtaining pension money to which the defendant was entitled from the general government, whereby the plaintiff, under the arrangement, was to have not less than a quarter, and not more than one-half, of the amount received in case of success, and nothing in the case of failure. Defendant’s plea was the general issue, and notice of set-off, and he further gave notice that he would show on the trial that if the plaintiff had any agreement with him for services,it was while he was acting as his agent in obtaining his pension from the government, for defendant’s services as a soldier in the war of the rebellion. On the trial of the case before the justice, the plaintiff recovered the sum of $300, Defendant appealed the case to the circuit court for the county of Calhoun, where the cause was retried before Judge Hooker without a jury. Upon the trial it was made to appear that the plaintiff collected pension money to the amount of $1,500, and that the defendant paid him for his services $150. The plaintiff then offered to prove that the parties submitted the plaintiff’s further claim for services to arbitrators, and that the arbitrators made an award that the defendant should pay the plaintiff the further sum of $100. This testimony, being objected to, was ruled out, and the ruling was excepted to by plaintiff’s counsel. After the testimony in the case was taken the circuit judge found the following facts: “ 1. Plaintiff was engaged in the business of practicing law in justices’ courts, and in procuring pensions through a firm of claim agents at Washington, D.C. 2. His mode of doing business was to send to said, firm the names of persons who had been in the service, receiving in return from said firm cards upon which were printed [273] questions to be'answered in writing thereon. The questions were written by him, and returned to the agents in Washington, who prepared and sent forward to him proper papers, and, if possible, procured the allowance of the claim, in which ease they paid plaintiff for his services. 3. Defendant, believing himself entitled to a pension, asked plaintiff’s advice about the matter, and what he would charge to assist him in getting it. Plaintiff said he had received different prices, depending on the amount paid out for expenses, — in some cases one-fourth, and in others one-half, the amount procured, — but as he could not lawfully contract for over ten dollars he would have to leave it to defendant to say-what he should have. Defendant thereupon told him to go on, and he would pay all expenses, and what was right for plaintiff’s services. This was in 1879. 4. Plaintiff procured and returned card mentioned, and went with defendant to get application signed, and also performed other services in the way of obtaining proof, writing and receiving letters, etc. 5. Defendant’s application was finally allowed, whereupon he paid the plaintiff ten dollars as and for the fee of the Washington firm, taking their receipt signed by plaintiff as agent therefor. Neither considered it as including any compensation to plaintiff. 6. Plaintiff never forwarded this money to the Washington firm, claiming it to be his due from them on other claims and he authorized by them to retain it. 7. Defendant subsequently paid plaintiff the sum of one hundred and fifty dollars for his services out of the money-received from the government as pension upon said allowance. 8. Plaintiff brought this action to recover a further sum, and took judgment in court below for $300. 9. No definite proof was made as to plaintiff’s expenses or disbursements.” The conclusions of law are as-follows: “ 1. Plaintiff was a claim agent, within the meaning of the law, and entitled to no more than ten dollars for procuring the pension. This was full compensation for all he should do, or procure to be done by his Washington correspondent. 2. Having received ten dollars for procuring said pension, he can recover no more for his services. 2. The payment of $150 was without consideration, and, [274] so far as defendant is concerned, unlawful, and may be recovered back by way of set-off. 4. Defendant should take judgment for $150 and costs.” Judgment was subsequently entered, in accordance with the finding, in favor of the defendant, under his plea of set-off, for $150, and costs to be taxed. Plaintiff brings the case here for review. We think, under the findings and proofs contained in the record, the judgment is correct, and must be affirmed. Thei-e seems to be no question but that the services claimed for \yere in procuring the defendant’s pension, in 1879. This is fully established by the findings of the circuit judge, and the plaintiff admits the receipt of the $150, besides the ten dollars which he claimed was for the agent at Washington. Under the laws of the United States ten dollars was all he was entitled to recover, and anything beyond that is positively forbidden by the statute.1 A charge beyond ten dollars is, under the law, against public policy, and cannot be sustained: U. S. v. Moyers, 15 Fed. Rep. 411. The money taken, beyond the amount allowed for such services, by the agent, may be recovered back by the pensioner, as money received for his use: Smart v. White, 73 Me. 332. It was therefore com•petent for the defendant to recover the amount so illegally taken, under his plea of set-off, and judgment was properly rendered therefor. The claim of plaintiff, being illegal and absolutely forbidden by statute, could not lawfully be made the subject of arbitration, as claimed by plaintiff’s counsel, between the parties, and the court committed no error in ruling out the testi [275] mony upon that subject; and for the same reason' no error’ was committed in disallowing the amendment offered by .plaintiff’s counsel to his bill of particulars for the purpose of supporting the testimony relating to the amount awarded. The federal statute is a beneficent one, intended for the protection of the soldier and his family from unreasonable -and unjust exactions on the part of agents who assume to act in his interest in collecting his pension, and it should be ■applied in all cases, when invoked, in such manner as to secure the object and afford the protection intended. We think the law applies with much force to the facts disclosed in the record, and Judge Hooker’s conclusion in the matter must be affirmed, with costs of all the courts. The other Justices concurred. Footnotes [1] By an act of Congress approved June 20, 1878 (vol. 20, U. S. Statutes at Large, p. 243), it was declared unlawful for any attorney, agent, or other person to demand or receive for his services in a pension case a greater sum than ten dollars, and that thereafter no fee contract should he filed; in any case, with the Commissioner of Pensions. This act was in force at the time the contract was made between plaintiff and defendant in this case. By an act of Congress approved July 4. 1884, the above act was repealed, with a saving clause, etc., and section 4785 of the U. S. Revised Statutes, which was repealed by the act of June 20, 1878, re-enacted, and sed ion 4786 amended (see vol. 23, U. S. Statutes at Large, pp. 98, 99, 100, 101).