Thomas Randall vs. James T. Archer, 5 Fla. 438

DuPONT, J., delivered the opinion of the Court. . This is a rule nisi, moved at the instance of Thomas Randall, against James T. Archer, an attorney and solicitor of this Court, to show cause why he should not be compelled to pay over to the said complainant the sum of six hundred and sixty-seven dollars and ninety-three cents, which he claims to be due him as solicitor’s fees, for services rendered in a certain cause decided at the last January term of this Court, wherein the “ Southern Life Insurance and Trust Company” was plaintiff and Augustus H.

Lanier was defendant, and in which cause a final decree was rendered in this Court against the defendant. ,. The answer of the respondent discloses the following state of facts, viz: — That the claim which constituted the cause of action in the said suit, had been assigned by the Southern Life Insurance and Trust Company to Robert Lump-kin, the present owner, in payment of certain liabilities which he held against said Company; that respondent and W. Gr. M.

Davis, Esq., were employed by the said assignee to‘conduct the prosecution of the said cause, and for which service they each received from Lumpkin the sum of two thousand dollars; that upon a final decree being rendered in said cause, the same was settled by the defendant, Lanier, by certain “ securities,” which were in the hands of respondent, as solicitor, at the time that the notice to retain was served upon him by complainant, and that he now has in his hands of said securities the amount of six hundred dollars, falling due and payable in New York, on the fifteenth day of «January, instant.

It was admitted at the hearing that the original bill of complaint was filed by the late firm of Randall & Hagner, of which complainant is the surviving partner, and that all the testimony used in the trial of the cause, was prepared under their professional supervision ; that the assignment to Lumpkin and the employment of Archer and Davis took place during the pendency of the suit in the Circuit Court; that complainant had never been formally dismissed from the cause, but continued to consult and advise with the newly employed solicitors down to the final decision of the cause in this Court.

The complainant exhibited a written contract with the Southern Life Insurance and,_Trust Company, and relied upon the same as evidence of the amount of his bill for Solicitor’s fees in that particular case. It was further admitted, in the course of the argument, that the securities received from Lanier, in settlement of the decree, had been in the hands of the receiver appointed in the case, and that they were afterwards, by the consent of parties, transferred to the custody of the respondent, to abide the order of the Court in the premises, touching the claim of the complainant.

Upon this state of facts, three questions were presented by the respondent, viz : First.- — 'Whether the ‘‘ attorney’s lien” followed the proceeds of the decree in the hands of the assignee of the debt? Secondly. — -Whether the complainant, under the terms of Ms agreement with the Southern Life Insurance and Trust Company ought to be allowed “ commissions” upon the amount recovered, or be confined to the stipulation for a specific fee for filing the original bill of complaint ?

Thirdly.■ — 'Whether, if u commissions” be allowed, the same ought to be calculated on the gross amount of the recovery, or only on the nett amount, 'after deducting the four thousand dollars paid by the assignee to his solicitors? We shall consider each of the questions in their place, and in order the more lucidly to present our views, it is necessary to premise that by the agreement entered into between Nan dull & Hagner and the Southern Lifelnsurance and Trust Company, they were to receive for the filing of the orignal bill and the issuing -of process, the stipulated sum of fifty dollars.

If the .case should be compromised before final decree, then an additional fee of twenty-five dollars, in full satisfaction for all services ; and if a decree be rendered, and the same be prosecuted by sale, then three per cent, on all moneys realized, to be allowed in lieu of the stipulated amount of twenty-five dollars ; and if no sale be had, to fix the value, then such commissions to be allowed upon the cash value of'the property, to be determined.

Upon the first point, it was contended by respondent, (who also appeared for and represented the interest of Lumpkin, the assignee of the debt,) that the assignee took the claim free from any lien save to the amount of seventy-five dollars, which amount he had stipulated in his agreement with the Company to pay to their attorneys, as their full "demand for professional services, arising under the second clause of their contract, and that if there was any claim for “ commissions,” by virtue of the terms of said contract, the claim was rightfully against the company, and the lien attached to the “ liabilities” received by the Company as the consideration of the sale of the debt to the assignee, and not upon the fund in Court.

We are of a different opinion.— To drive the attorneys to a resort to the fund received by the company in consideration of the assignment, is effectu- , ally to deprive them of even the semblance of a “lien”— their demand in such cáse becomes simply au ordinary debt against the Company; for of what avail is their right of lien when the fund upon which it is to attach is out of and removed beyond their'control ?

The corpus of their lien was the bond and mortgage of Lanier, which had been placed in their custody for suit, and the consummation of their right, was limited only by the termination of the suit and the realization of its proceeds. It was further contended upon this point that by tbe terms of tbe agreement between the assignor and assignee, for the sale and purchase of the debt against Lanier, it was stipulated that the assignee was to take the debt, subject only to a charge of seventy-five dollars, to he paid to the attorneys who had instituted the suit.

To this we say that no arrangement entered into between the assignor and assignee, and to which the attorneys were not a party, will operate to divest their lien, and that in all assignments, whether legal or equitable, the assignee takes, subject to existing rights. But upon a full review of the facts in this case, Lump-kin bas no just cause to complain of this assertion of the right of lien. He had not only constructive but actual notice of its existence.

The public records and files of the Court furnished ample evidence of the relation which these attorneys bore to the claim which he was about to purchase, and his own stipulation to settle with them tbe amount of seventy-five dollars, is proof conclusive that he bad actual notice of that relation. As a cautious and prudent man, he ought to have sought from the proper source the extent of the attorneys’ lien.

It was his misfortune to have relied too implicitly and exclusively upon tbe representations of the officers of the Company,' (doubtless growing.out of a misconstruction of the contract which they had entered,into with their attorneys,) and whatever right these representations may give him to claim re-imbursement from the company, they certainly cannot be permitted to ' operate to the detriment and injury of an innocent third party. .Upon the second point raised by the respondent, we are clearly of the opinion that the complainant is entitled, under the terms of his contract, to compensation by way of u commissions.” By reference to the written agreement, it will be seen that the stipulation for the specific fee of seventy-five dollars, was to operate only in the event of “ a compromise of the case before decree,” and to sustain the pqsition taken, it must he established that the case was so “ comgi'orrúsed” "We do not agree with the counsel that the arrangement entered into between Lumpkin and the Company was a “ compromise” within the spirit and meaning .of the contract.

Indeed, there was no compromise of the case before decree. The arrangement was simply an ordinary “ assignment” of tbe debt upon which the suit had been brought. The first and most essential element of a compromise is lacking — the participaucy and assent of La* nief, the debtor- — and no arrangement to which be was not a party can bear that

interpretation. But for the subsequent employment by tbe assignee of additional counsel, this controversy would probably never have arisen; and in view of tbe fact that the complainant was never dismissed from the cause, but continued his relation thereto as counsel and solicitor, to its termination, we are of opinion that he is equitably entitled to tbe full benefit of tbe agreement entered i’.'-to with the original owners of the debt. We feel no difficulty in ruling tbe third.point also in favor of the complainant.

It would bo establishing a dangerous doctrine to admit the right of a client, at his own option, by the employment of additional counsel, to reduce the amount of the compensation or fee which he had stipulated to pay to the original attorney.

It is true that it not unfrequently happens that in the progress of a cause unforeseen difficulties arise, which make it advisable to call in the assistance of other counsel, and that in such cases the original attorney consents, in view of the additional charge upon his client, to abate the amount of compensation originally stipulated, but this, whenever it does occur, must be matter of agreement — it is not a matter of right. It may be proper to be noted that the Southern Life Insurance and Trust Company, upon notice of this rule, appeared by attorney and disclaimed any interest in the controversy.

Upon a full view of the whole case, we are of opinion that the rule must be made absolute, and do therefore order that the respondent, James T. Archer, do pay to the complainant, Thomas Bandall, out of the securities in his hands, when realized, the sum of six hundred and sixty-seven dollars and ninety-three cents, the amount of his bill for attorney’s fees, due in the ease of the Southern Life Insurance and Trust Company vs. Augustus H. Lanier. The costs of this rule to be paid by complainant.