51 F. 483 -

IT. LOuIs,'I. M ·· s. BY. CO···' etABIt.

81'. LoUIS, I. M.

0LA.Bx: tit

&;

S. Ry. CO.

fl.

CLAlm: et al.

al.". ST. Lours, I. M. &; S. Ry. Co.

Qf .Appea£S, ,JC1.ghth c-wcuk. lul7 19. 1892.)'

(Oi"cuU Coun

So

A'J'TOD1I1I1" J.1fD

A law fl,rm agreed with a railroad company to institute proceedings to l'8OO'Ver certain land. If the land was recovered the attorneys were to receive compenslt' tion commensurate with their services, but,.in case of defeat, only an amount suf.; cover expenses. proceecHngs resulted in placing the fee title of the land' in the 'company. Fortner action ajl'alnst parties claiming possession under tax, sales was brou'ght, resulting in decision ,adverse to the company. The company declined to appeal the case, and settled with the firm by paying an amount sufficient to cover expenses. The company afterwards appealed the case, and the decision was re.versed, and the land given to the company. HeW, that the sett1&-' ment was no bar to an action by the attorneys under the provision of the contract., which guarantied to the firm the full fee if the land was ultimately recovered. ' Tile property recovered was worth from $25,000 to ,!ro.OOO. The trial court allowed a fee of 15,000 under the agreement, deducting therefrom $2,000 due or Pl'id to the counsel who conducted the case to final judgment in the supreme court. Held. that this fUlly met the equities ot the case. '

.. SAlliE. '

Cross Appeals from the Circuit Court of the U:nited States for the Eastern District of Arkansas. ' .' InEquity. Suit by S. F. Clark and S. W. Williams against the St. Louis, Iron Mountain & Southern Railway Company to enforce a lien for attorneys' fees. Decree for complainants for the sum of 82,500. Both parties appeal. Affirmed. S. F. Clark and S. W. Williams, for complainants. Goo. E. Dodge and B. S. John8fYn, for defendant. ,Before SANBORN, Circuit Judge, and SHIRAS, District Judge.
SHmAS, District Judge. From the record in this cause it. appears that in August, 1878, S. F. Clark and S. W. Williams, then partners engaged in the practice of the law under the firm name of Clark & Williams, made an agreement with J. E. Redfield, president of the Little Rock, Mississippi River & Texas Railway Company, whereby they undertook to prosecute proceedings for the recovery of a valuable section of land situated near Texarkana, which it was believed belonged of right to said railway company above named, it being further agreed that, in case the property was recovered, said Clark & Williams should be paid a large fee, commensurate to the risk, the amount of labor performed, and the character of the case; but in the event the property was. not recovered they were to receive only sufficient to cover expenses. Under this agreement the firm instituted proceedings which resulted in placing the lee title of the land in the name of J. E. Redfield, and thereupon an action of ejectment was brought in the United States circuit court for the eastern district of Arkansas against certain parties, who asserted title to the land under tax sales and deeds made pursuant thereto and possession held thereunder. On. the trial of this case th6

REPORTER,

vol. 51.

court sustained the plea of the statute of limitations, and gave judgment for tbe defenllants. :ay t4istime Mr. Redfield had ceased to be president of the railway company, the same having passed into the control of a new direqtory, withJ3:enry Wood as general managel'l. Upon the rendition of the adverse decision in the ejectment suit, the attorneys urged that the case be qpp.ealed to the supreme court,but the parties then in control of the affairs of the company refused to further prosecute the case. Thereupon the attorneys, assuming that the proceedland had failed, sought for·, a settlement of tneir claim under the agreement that, in case of failure, they were to be paid a suffi,.cient to cover expenlles, and, after much negotiations the sum. to be paid was fixed at $500, for which the railway company gave its;'promissory note, p!,lyable on or before January 1,1886, which was paid, in due season,and the attorneys executed the following receipt: "LITTLE ROCK, ARK., June 20, 1885. "Received of the LittleRock, Mississippi River and Texas Railway two notes of this date, and due on the first day ofJanuary, 1886,-one to Clark &; Williams for five hundred dollars, and one to L. A. Pindall for three hundred and twenty-five dollars. Said notes are in full for the services of said Clark &; Williams and L. A. Pindall in the sllit of Redfield against Parks and oth· et's; and also iii trill for tlie services of L. A.Pindall, in the prosecution of W. R. Procis·. for tearing up :ailroad track, before Esq. Somers at Arkansas
City.' , '.. CLARK & WILLIAMS. "L. A., PINDALL."

January 1;; 1886, tnefirm of Clark & Williams was dissolved, arid thereafter Mr. Clark, who, it seems, had always had confidence in the case, succeeded in convincing the general manager and attorney of the rail way company that, there was good ground for reversing the judgment of the olhuitcourtin the eje6tmetit'suit; and finally, in February, 1886, they authorized the suing out of a writ of error in that case to the supremecourt,uipci>n the that if the judgment was reversed Clark.:was to be paid $1,000 for his services in the supreme court, but was to receive1llothing in case the judgment was affirmed. Upon the hearing befor.ethe supreme court, the jUdgment below was reversed, (10 Sup. Ct. Rep. 83,) and the result waS that the land was adjudged to belong to Mr. Redfield, who held the' title in fact for the St. Louis, Iron Mountaini&Southern Railway Company, the successor of the LittleRock, Mississippi Hiver & Texas Railway Company . Upon the entry of'tllie'final judgment in the circuit court pursuant to the mandate of the supreme court,Messrs. Clark & WilliamS filed a lien thereon under the provisions Of the statute of Arkansas, claiming the sum of $5,000iandbrought this suit in equity in the circuit court for the eastern district of Arkansas for the enforceinent of such lien against the land in question. In aubstanoothe defendant company pleaded in defense that the paymento.f$500 terminated all claims on part of the firm of Clark & Williamfl,being a settlement in full with them, and that the further proceedings had in the supremeco1.1rt were taken under the speciaJ

ST. L.OmS, I. M. &: S. ,RY. CO. t7. CLARE.

485

..

agtpement xnade with S. F. Clark individually, to whom payment had been made of the $1,000 coming to him in case the suit was won. Upon the trial before the circuit court the evidence showed that the property recovered for the benefit of the railway company was worth from $25,000 to $50,000; that the legal services rendered in recovering the same were worth at least $5,000; that the company had paid the 8500 for which the receipt dated June 20, 1885, was given, and the further sum of $1,000 to S. F. Clark, and had also become liable for the fees earned by other counsel associated with Mr. Olark in the argument of the case before the supreme court, estimated at $1,000; and upon the whole eYidence the court held that the payment of the $500 and the execution of the receipt therefor did not, under the circumstances of the case, estop complainants from claiming further payment when the company afterwards appealed the ejectment suit and recovered the land, and that were entitled to a fee of $5,000, from which should be deducted the payments made of $500 Rnd $1,000, and the further sum of $1,000 to cover fees of other counsel at Washington, and upon this basis entered a decree for complainants awarding them the sum of $2,500. From this decree both parties have appealed to this court, the railway company claiming that complainants are not entitled to any sum, andtbe latter claiming that the deduction of $1,000 for fees of counsel at Washington should not have been made. had in 1885, Counsel for the railway company rely upon the the payment of $500, and t\1e execution of the receipt of June 20, 1885, , as a bar to any recovery on part of complainants for services rendered before that date. The evidence clearly shows that this settleme,nt,was entered into on the understanding that the litigation over the land was at an end, and that the company would not appeal the ejectment suit. Under these circumstances, the complainants could, under the agreement made between them and Mr. Redfield, claim from the company only a sum sufficient to cover expenses, and it was this claim that was settled by the payment of the $500. If the company had not subsequently revived the litigation, there would be no question that the payment so made would have ended all claim for compensation under the agreement made with Clark & Williams. l'he agreement, however, to receive $500 as payment in full, was not entered into upon the understanding that such sum represented the actual value of the services rendered, but that it represented all that the attorneys could claim under,the agreement whereby they had bound themselves, in case of defeat, not to demand more than the equivalent of their expenses and outlay. The company at that time determined not to further prosecute the case, and by such determination compelled the attorneys to accept payment upon the basis of a failure to recover the land. Subsequently the company revoked the conclusion not to further prosecute the case, and, upon an appeal, changed the company availed itself of all the defeat into victory. In so work and services rendered by the complainants from the beginning of the litigation. Can it nowefluitably refuse compensation for such work and services on the ground of the settlement made in 18i).')· As already

·

486

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waa''ili&de upon. the basis litiga1iori-.thiit nnide' by rea$ori of the fact !th!tt. the company refused+ tt1 take anapp'Ml frorn the judgment in the ejectment suit;' tbissettlement the to then tale' analJpealapd" further prosecute tile htIgatloIl , thIS would heyqntl all doubf thlitthe. been obtained by actual fraud on partofthe compapY'-and would not stand amomerit in a court of eqUit:.:' . . . . » ' . ' '. i'll i '" . . .. result i$justthe same, in this case, if the contention of is now stMaihed. We do not intimate or believe that whentheOfticers of theciolhpany made the settlen'ient in J u11e, 1885, theY' tliencontemplated:ahy further prosecution of the case, orintended to a fraud upon, COIllplainants; but having induced the compayment ir{ full of their claim Upon .the plainants'to accept$5QO ground that no appeal would be taken in the ejectment suit, and therefore thecompany had derived no benefit' from the sel'vigeS rendered by complainants! it would, <iettainly be mbst inequitable to now permit the an answer to the claim of the company to rely upon this settlement attorneys for services rendered, andw-Mch have in fact resulted in a large benefit;tothe company. The facts,in 'our jUdgment, fully justify the ruliI;Ig'of thecircllitc9}1l'tthat the payment of $500 upon the settle,bar to the claim asserted under the proviment made in ,1885 is . sion of the contract whi6hgual'antied to the complainants a full fee in case recovered for the railway company. To hold otherwise would be. to. give to the settlement then made a force and effect which neither of thepal'ties then contemplated, and which would in its results work a fraud upon complainants. This settlement was effectual and binding, having relation to the situation of the case as it was then understood by the parties, but when the railway company subsequently changed the situation, and, availing itself of all the work and ael'vices previously rende.red'by the complainants, it revived the litigation, and succeeded in mairitaining its right to the land, it thereby revived the claim on behalf 6i'complainants to demand compensation acmade with Mr. Redfield as presicording to the terms of . dent of the company. . : . '. The sustains the finding of the court that the services in carrying through the litigation to a successful result were fa'irlrwl;>rth the Bum of '$5,000, and the only question remaining for is that presented by the. cross appeal taken by complainants, tQwit, whether the court was justified in deducting from the gross SUIll $1,000 to COver expenses of counsel who aided in the presentation Of the case before the supreme court. What in faet the trial court found amdriilt t() as fees was that the total sum the company should pay was $5,000·. ',The witnesses who testified to the value of the services included in their estimate all the work done in the circuit and on this testimony that the finding was made, supreme courts, and it allowing the sum naiiied as cbmpensation for the legal services rendered.

_.r::,

wit?

n

as

487
The present are l1oW' 'claiming'thebeiIefit' 6fthe services rendered in the supreme court; and which resulted in the' judgllll:lnt awarding the land to thecompl\ny, and equitably they must take the burden, if they accept theberiefit.,The circuio court allowed $2,000 to cover the services rendered in the arid $3,000 for those in the circuit court, and upon the latter sum allowedcl'ediHor the paymentof $500 made in June, 1885" thus finding due thecomplainnnts the sum,of $2,500. We think this apportionment met the ,equities of and that complainant$ aJ:'e not in position in excess. of that awarded them. The decree of the circuit court is therefore, 'affirmed on, b.othappeals, eachparly to pay the' cqsts of the appeal by' them taken.

LEMOINE tl. DUNKLIN COUNTY.

,

Circuit Court oj' Appeals, Eighth.'01n-cuit. JulyS5,1891.

.

No.ll8.

1. LAClIBs-TRusTBEs-REPUDIA'1't01l' OF OF SW.lMP L..t,im. ' .. .i Theissuance of receipts and certificates of purchase of swamp lands belonging to a Q()unty, by the proper omcers thereof,makes the county a trustee holding the legal title of the lands for the benefit,of tlle purchaser, and laehes cannot be imputedto tlle latter in respect to «elay in obtaining a conveyance, until the county has repudiated the trust by some uneqUivocal act. 2. SAME-PAROL EVIDENCE. A suit was commenced in 1888 to compel a county to convey swamp land!! to the holder of certificates of purchase issued by the county omcers in 1857. The defense was laches. The county court was the proper authority for making the convey. ances,;but there was ,no statute requiring demands for dellds to be made a matter of record. Furthermore th,e records of the county had ,been destroyed in 1872. that/ ·forthe purpose of'showing a repudiation of ilisrelatioil of trustee t llding the legal title for thecertUl.cate owners, the county was entitled to show by parol evidence that demands for deeds were often made to tlle court in 1866, and were continuously refused on the ground of fraud. 8. CONSTITUTES. , The delay of 2.2 years after the repUdiation of the trust constituted laches, and plaintitt could not maintain the suit. 46 Fed. Rep. 219,aftlrined. '!

Appeal from the Circuit Court of the United States for the Eastern District of Missouri. Affirnied. . Statement by CALDWELL, Circuit Judge: This is a suit in equity commenced on the2d day of July, 1888\ in the circuit court of the United States for the eastern district of Missouri, by the appellant, IJouis R. Lemoine, against Dunklinicounty, theappellee, to cOlnpel the county to convey to the appellant about 17;000 acres of land,which the bill alleges the county holds intrust for the appellant, .and to require the county to account for the proceeds of such of said landeas it has sold: . The Inndsin question are swamp lands, granted by the UnitedSUttes totha state of Missouri by act of congress approved September 28,1:850, and granted by the state to the county