Farish Carter, Appellant, vs. W. G. M. Davis, A. G. Semmes and others, Appellees, 8 Fla. 183

Hon. B. A. PUTNAM, Judge of the Circuit Court of the Eastern Circuit, who sat in this cause in place of Baltzell, C. J., who was disqualified from interest, delivered the opinion of the Court. Appeal from the Circuit Court of Leon county, sitting as a Court of Chancery. A. T. Bennett had obtained in the Circuit Court for the county of Franklin a verdict and judgment thereon in ah action of trover against Farish Carter, for thesum of $20,000, or within a fraction of that amount; and in this suit counsel were employed by Bennett, among whom were A. G. Semmes, 'W. G. M.

Davis, Finley & Campbell and Thomas Baltzell, all of whom were engaged in the case in the Circuit Court, some of them in the Supreme Court of the State, on the appeal from the Circuit Court, and "W. G. M. Davis in the Supreme Court of the United States, to which Court the case had been carried also by appeal. This suit grew out of transactions to which it is now unneccessary to refer, and which are irrelevant to the matters submitted to this Court for consideration. Subsequent to the obtainment of the said judgment by Bennett, Carter filed a bill against him, Itobert May, assignee of the judgment and W. Q-. M.

Davis and A. Gr. Semmes, attorneys of Bennett in the prosecution of said suit in trove]’, and who severally claimed to have a lien for their fees upon the judgment rendered therein suj)erior to the alleged equities of Carter, and to be allowed the same out of said judgment. Carter in his bill set up certain equitable claims against Bennett, which were prayed to be considered and allowed.

On motion of counsel in behalf of Carter, and after argument thereon, an injunction was awarded by the Court enjoining and restraining all proceedings upon the judgments and executions mentioned in the bill of complaint in favor of Bennett and others. Afterwards, and on the coming in of the answer of Bennett, the Court dissolved the injunction, and Carter prayed an appeal to the Supreme Court.

The appeal was considered and the grounds thereof argued at a term held by the Supreme Court in 1855, at Tallahassee ; and the Court held the order of the Circuit Court dissolving the injunction to be erroneous,'ordered the injunction to be reinstated, and remanded the cause to the Circuit Court for further action.

The equities set up by Carter in his bill against said judgment of Bennett, came in conflict with the equitable lien claimed by Bennett’s attorneys upon the same for professional services rendered by them in obtaining said judgment ; and the Supreme Court, besides reversing the order of the Circuit Court dissolving said injunction, proceeded further to enquire into the said equities so presented and urged by Carter on the one side, and by Bemiett’s attorneys on the other ; and held that the attorneys not only had a lien for their professional services upon said judgment, but that said lien constituted in their behalf a priority, but because the extent of that lien, or the value of the services, did not sufficiently and satisfactorily appear from any evidence in their possession, the Supreme Court deemed it necessary that an enquiry and investigation should be had in relation thereto, and the extent of the attorneys’ lien ascertained, which the Court held should be reasonable and adequate compensation ; and thus they prescribed a “ qwmtnim meruit” as the basis for the ascertainment of the extent of said lien.

The Circuit Court, in obedience to the mandate of the Supreme Court, proceeded to make inquiry and investigation required to ascertain the extent of the attorneys’ lien upon the judgment; and witnesses were examined and their depositions submitted. The cause coming on to be further heard before the Circuit Court for Leon County, on said bill, answers, and depositions filed as aforesaid, and after hearing the same and argument of counsel therein, the Circuit Court, on the 29th day of January, 1856, rendered a decree, and thereby ordered and adjudged, that the following named attorneys of Bennett, to wit: A. G.

Semmes, was entitled to $50.00, with interest from the 10th day of June, 1853, for his services rendered in said action at law; W. G. M.

Davis was entitled to-the sum of $3,700 with interest to be computed on $500- of said sum from the — of December, 1818, and interest upon the balance of $2000 of said amount from the 31st day of July, 1851, and interest upon the balance of $1200 from the 28th day of February, 1851; and that Thomas Baltzell was entitled to the sum of $500 for his services in said cause, and said Finley & Campbell were entitled to $1000 for their services in said cause, And the Court further decreed, that as to the said sums so adjudged to be due to said attorneys for their services rendered in said cause, they were entitled to a lien upon the amount rendered in said judgment, in preference to the equitable demands by said complainant Carter in his said bill set forth.

And the Circuit Court further decreed, that the complainant should pay into Court a sum sufficient to cover the amount of principal and interest decreed to be paid to Bennett’s attorneys. From this decree of the Circuit Court an appeal has been taken by complainant Carter to this Court, and the following are the grounds assigned for the same: 1st. The chancellor erred in considering the alleged contracts with Bennett the criteria or basis of the equity he was to administer, without reference to the question of the reasonableness of the alleged contracts. 2d.

The Court erred in considering and adopting any contract between Bennett and the solicitors not definitely made as to time and manner, that is in writing and before the service was performed. 3d. The Court erred in determining upon the evidence that any contracts were proved. 4th. The Court erred in not adopting the basis of ltquan~ium meruit ” to determine the fees. 5th. That the sums allowed are exhorbitant. 6th. That four counsel are allowed and separate compensation in one suit for one trial. 7th.

The Court erred in determining on the evidence that the solicitors were entitled to any lien, and that the judgment in trover was to be recognized as a valid judg. rnent to the amount of the verdict. A motion was submitted by counsel for appellees to dismiss this appeal upon the grounds— 1st. That the appellant has not such an interest in the-matter as gave him a right to appeal from the decree of the Circuit Court. 2d.

That if he previously had such an interest, he had, by the settlement and compromise made between himself and Bennett subsequently to the decree of the Supreme Court in the premises, parted with and extinguished the same. The Court does not concur with the counsel in these views, nor does it assent to the truth of these propositions.

Previous to the compromise referred to, the appellant pos? sessed equitable claims against Bennett which he could make available as an off-set against his judgment at law, and which the Supreme Court have by its decree recognized, and which, but for the equitable lien of Bennett’s attorneys upon said judgment for their services in obtaining the same, and which lien the Supreme Court has held to have priority over said equitable claims of Carter, might have entirely extinguished said judgment, or very much reduced it.

Nor does this Court think that the settlement and compromise made by and between Carter and Bennett of all those legal controversies and claims against each other, including the said judgment in trover, has divested Carter of the interest he so previously possessed to have a fair and equitable adjustment of the claims of Bennett’s attorneys upon that judgment, nor have they deprived him of the standing in Court to contest these claims with said attorneys, which, in virtue of his recognized claims, he had before the settlement and compromise.

The compromise made the release and satisfaction of the judgment by Bennett subject to such lien as might be decreed to exist, chargeable to Carter, and which lien Carter was resisting, and subject to the lien of Bennett’s attorneys, if any such lien be found to exist, and be chargeable by law or in equity against Carter — (see record page 37.) The compromise operated as a mutual release of all claims and demands mutually existing between them, and tied up the hands of both so as to forbid any legal proceedings by the one against the other, and which, so far as Bennett was concerned, extinguished the judgment and all his interest therein, yet kept it alive for the purpose of answering to and being made subject to any lien existing against it in behalf of Bennett’s attorneys, and to this extent equally kept alive Carter’s equitable claims against it; and although these were mad„e subordinate to the equitable lien of Bennett’s attorneys, yet they were sufficient for the purpose of resisting said equitable lien beyond an equitable extent.

Besides, Carter, by the decree of the Circuit Court, was required to pay into Court a sum sufficient to cover the amount of principal and interest decreed by the Court to be paid to Bennett’s attorneys.

He was then still a party in the cause, subject to and subject to the Court’s decree, and being not only still clothed with his unextinguished equitable demands against the judgment, but also having, by his agreement with Bennett, imposed upon himself the obligation to take the release of the judgment, subject to such lien as might be found to exist against the same in behalf of Bennett’s attorneys, he had an interest to contest both the lien and its extent; and even if he was precluded by the decree of the Supreme Court, and subsequent compromise, from questioning the lien itself, he was not jtrecluded from questioning its extent.

Taking this view of the subject, the Court considers that the appellant occupies a position which entitled him to appeal from the decree of the Circuit Court, and therefore the motion to dismiss the appeal is overruled. We proceed now to examine the grounds assigned for the appeal. As to the first ground, the evidence taken and used in this case does not, in our opinion, sustain the conclusion of appellant’s counsel, that the Court, in making its decree, made any contracts with Bennettthe criteria or basis in administering its equity.

Upon an examination of the evidence, we are unable to discover that any contract before or at the time of the rendition of the said services by Bennett’s attorneys, other than an implied contract to pay whatever such services were reasonably worth, has been established to exist between Bennett and his attorneys. There is nothing appearing in the decree to show, nor does its language so indicate, that the amounts decreed were arrived at by a consideration. of any express contracts found or alleged to exist between the parties.

On the contrary, the decree is entirely silent on this subject, and the evidence looks to a “quantum meruit,” with the exception of some loose statements of Bennett, testified to by Mr. Eppes, and his own vague statement in his answer as to the amount due to A. G-. Semmes, and some other admissions by him long after the rendition of the services, all which are mentioned by his statements in his conversation with Mr. Davis in New Orleans, in June, 1853, which indicate anything but a recognition of any previously existing contract between himself and his attorneys.

All this testimony speaks not of any contract, in writing' or verbal, made and entered into by Bennett and his attorneys either before or at the time said services were rendered, but, on the contrary, the witnesses speak of the compensation,- in reference to its 'fairness and reasonableness, assuming as a basis a “quantum meruit,” and it is upon such evidence the decree of the Circuit Court is founded. The second, third and fourth grounds are involved in the discussion of the first and answered by it.

As to the fifth ground, if the sums allowed by the decree of the Circuit Court are not justified by the evidence taken in relation thereto, then the charge that they are exhorbitant may be correct, and, if so, it becomes the duty of this Court to reduce them so as to conform to the evidence. On this point the Court will hereafter express its views and make such order as may be proper in the premises.

As to the sixth ground, this Court would unwillingly assume, except in cases where its interposition would be more clearly justifiable than is apparent in this case, to restrict an individual in the amount of professional aid he should invoke to assert or to defend his rights or interests, and yet it might with entire propriety in this and similar cases interpose so far as to confine the claim for services within the limits of a just and reasonable compensation.

The Court does not perceive the force of the objection that four counsel should be employed and allowed separate compensation in one suit for one trial, when it appears that in such suit there were required unusual and extraordinary exertions, because it involved a large amount, great responsibility, unremitting attention and labor, surrounded by peculiar and pressing circumstances.

If it shall appear that such compensation is neither unjust nor unreasonable, the individual himself, whose rights are invaded or withheld from him, is the most competent judge of the amount and kind of professional auxiliaries he should employ to assert or to defend such rights ; but to protect him or those subrogated to his rights from unreasonable exactions by those whom he had summoned to his assistance, may very properly be deemed a duty devolving on a court of justice.

In this case, whilst the court does not perceive the propriety of its regulating the number of the attorneys, it will exercise its authority to en-quire into and confine their claims within the limits of justice and reason. The court has been referred to the ease of Edward C. Bellamy vs. Samuel O. Bellamy’s administrator, decided by this court in 1855, and the rule adopted for that case has been invoked as a measure of compensation in this.

This court does not intend to interfere with the rule or principle of allowance adopted in that case, but deems it unapplicable here, as the cases are not, in the opinion of the court, parallel. As to the seventh ground, we do not think the court erred in determining on the evidence that the attorneys were entitled to a lien or in recognizing the validity of the judgment in trover. This court had already held that the claims of the attorneys constituted an equitable lien on the judgment, and, as such, to have priority.

The extent of this lien, however, was to be ascertained upon the basis of a “quantum meruit.” Now this court holds, that, however strong may be the equities of Carter, they must necessarily yield to this lien so far and to the extent it is ascertained to be just and reasonable, and to that extent the judgment stands as a security for its satisfaction.

If any doubt could have been entertained previously on this point, or in relation to the character of the judgment, as being inequitable or not, the compromise, which is a part of the evidence in this case, made by and between Bennett and Carter subsequent to the decision of the Supreme Court, is well calculated to exercise exclude enquiry on that subject.

If any lien should be found to exist in behalf of Bennett’s attorneys, then the satisfaction, release and discharge of the judgment are not to affect such lien, but are expressly made subject to it — {see record, page 37.) The same may be said iu relation to the character of the judg. ment; and the opposition thereto upon the ground ofits being inadequate has manifestly been abandoned by the compromise between the parties.

The question, then, is not as to the existence of the attorneys’ lien upon the judgment, but as to the extent of the same; and this Court is to enquire whether the Circuit Court has carried out the directions of this Court and founded its decree upon the basis prescribed for ascertaining the extent of the attorneys’ lien — that is, of a “quemtura meruit” or has proceeded upon grounds not authorized by the decree of this Court.

We are satisfied, upon examination of the evidence, that it is not sufficient to establish any express contracts, verbal or in writing, for compensation for services between Bennett and his attorneys, before or at the time said services were rendered by them, or by either of them, nor are we able to discover that the allowances by the Circuit Court have been made upon any such consideration.

On the ■ contrary,-the evidence does not speak of the value of the services as being established, but of their reasonable value, and to which said services are justly and reasonably entitled, and it is proper to conclude that the Circuit Court founded its decree upon the evidence before it. The counsel on both sides have taken a very wide range in argument, going back into the history of the original transactions between Carter and Bennett and his associates, out of which this case has arisen.

We do not deem it expedient or material to enter this field of discussion to seek for information to guide us to a conclusion in the matters now under consideration. That history presents two aspects, neither of which is creditable to the parties; and, although it may afford entertainment to its readers, it does not enlighten this Court upon the points now presented for examination. Entertaining these views, we proceed to examine the allowances made by the Circuit Court as compensation due to Bennett’s attorneys. And, first, as to the amount allowed A. G.

Semmes, we think the Circuit Court has erred, and that upon the evidence that allowance should not ‘have exceeded $3,500. It is clear that Semmes himself did not claim more than this as a principal sum up to June, 1853, nor at-that time, and neither the evidence nor propriety warrants an allow.ance for principal beyond this. Bennett, in his answer,'filed on the 24th July, 1854, to the bill of complaint against him by Carter, says the fees due A. G. Semmes, as one of his counsel in the said judgment in trover, is the sum of $5,000 — that is to say, the sum for fees at the time said answer was filed; but W. G. M.

Davis, in his deposition, (see record, page 53,) states, that in June, 1853, in New Orleans, Bennett showed him a letter from Semmes enclosing his account for professional services in the trover suit between Bennett and Carter and in a variety of other cases and business; that the charge made .by Semmes in that account was $3,50.0, as of the day of the judgment in trover, in addition to which he claimed interest from that day — the day of the rendition of the judgment; that after Carter had filed his bill against Bennett, Semmes and Bennett calculated the interest on the $3,500, added it to principal, and then, in the answer of Bennett, the approximate result was put down as being $5,000.

This explains the statement of Bennett, in his answer, that the amount due Semmes for fees was $5,000. Of this amount $1,500 are for interest .and the balance, or $3,500, are for principal.

We do not deem it necessary, in this connection, to refer to nor to consider the testimony of Eppes in relation to the statement to him by Bennett as to the amount due to Semmes for services in said suit, as it is manifest from Bennett’s subsequent conduct and declarations that there was no specific agreement between himself and Semmes as to the amount of compensation; and, further, Semmes himself did not claim more that $3,500 in dune, L853, for principal, as compensation for services.

Davis, (see record, page 55,) after detailing the reasons for his opinion, says expressly, that he regards the cha/rge made by Semmes as a fair and proper one, from which we conclude that his services, were, in the opinion of the witness, such as to entitle him to this amount of compensation upon the basis of a “ guantmi meruit.” Davis, from his position and intimate connexion with the suit in trover, had a better opportunity of witnessing and knowing the nature and extent of the services performed by Semmes, and therefore of making a just estimate of their value, than any other witness who has testified.

As to the claims of W. G. M. Davis for his services rendered in said trover suit, A. G. Semmes being asked (see record, page 66,) to state what, in his opinion, the professional services rendered to Bennett by Davis were worth, estimates their value in detail, and states, that those rendered in the Supreme Court of the State were worth $2,000, and those, rendered in the Supreme Court of the United States were worth $1,200. Mr.

Hogue, also a witness for Davis, (see record, page 11,) expresses the opinion that the claim of Davis is not too large, and founds that opinion upon the magnitude, intricacies and difficulties of the questions involved, and the ability of Davis in the management of the cause, as well as the amount in controversy. As to the claim of Finley, Davis expresses the opinion, (see record, page 53,) that his charge of ‘$500 in the Circuit Court and $500 in the Supreme Cofirt is favr and proper, and he founds his opinion upon hnowledge of the services performed by Finley.

Therefore this Court considers so much of the decree as allows $5;000 to A. G. Semines for his services is erroneous, and that $.3,500 is all that should have beefy allowed, and this without any interest thereon, and the Court below is directed to correct the decree in this respect;, that so much of said decree as allows $3,700 to W. G. M. Davis is affirmed for that amount, but interest thereon is sdisallowed; that so much of said decree as allows $1,0'()0 to Finley & Campbell is affirmed for that amount without interest thereon.

With respect to so much of the decree of the Circuit Court as allows $500 to Thomas Baltzell, this Court, i: view of the conflict of the evidence presented by the record upon the admissibility of this claim, is unprepared to come to a satisfactory conclusion. This matter is therefore referred back to the Circuit Court to be further enquired into, and if it shall be shown by the claimant, upon such enquiry upon further evidence, that he has not excluded himself from the compensation now claimed by him by his admission in his deposition made in the trover case of Bennett vs.

Carter and exhibited in evidence nq this case, then he may be allowed such reasonable amount as the evidence may authorise the Circuit Court to award. The Court, looking to the circumstances of this case and in the exercise of its discretion as a court of chancery, orders and decrees that no interest be allowed upon either of the sums which shall be definitely awarded by the Circuit Court to Semmes, Davis, Finley & Campbell and Baltzell until a final decree for the several and respective allowances shall be rendered by the Circuit Court.