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Blount vs. Wells.
the principle of contributory negligence, as assumed in the charge of the court in this case.
2. Besides, the evidence in the record does not show that Bennett ordered the plaintiff to get off of the car, and the charge of the court was error for that reason. In view of the rulings of the court, and the evidence, as contained in the record, the court erred in overruling the defendant's motion for a new trial.
Let the judgment of the court below be reversed.
HENRY BLOUNT, plaintiff in error, vs. W. T. WELLS, for use,
etc., defendant in error.
55 282 55 608 60 298 61 275 70 517 73 50
An execution from the county court, issued by the clerk de facto and signed
by him officially, is not illegal because the clerk practiced law at the time, and was one of the attorneys of record for the plaintiff in the execution.
County Court. Clerk. Attorney at law. Execution. Before Judge WRIGHT. Decatur Superior Court. May Term, 1875.
Wells, for use, etc., recovered a judgment against Blount in the county court for Decatur county, established by the act of 1866. Sims & Crawford represented him as attorneys. W. H. Crawford, of said firm, was also clerk of the county court. He signed and issued the execution based upon the aforesaid judgment. Upon the levy of this fi, fa., the defendant set up, by affidavit of illegality, that Crawford, being the plaintiff's attorney in said case, was not competeni, as clerk, to issue said execution. The illegality was overruled and the defendant excepted.
John C. RUTHERFORD, by JACKSON & CLARKE; O. G. GURLEY; D. A. RUSSELL, for plaintiff in error.
BOWER & CRAWFORD, for defendant.
Moses vs. Bagley & Sewell.
This execution was from the county court provided for by the act of 1866. Section seventh of that act creates the office of clerk, and lays no restriction upon his practicing law. Neither the judiciary act of 1799, Cobb's Digest, 574, nor the Code, section 256, applies to him. The county court act was complete in itself as to the clerk. Other legislation need not be referred to, to find out what he can or cannot do, further than the act makes the reference by its own terms. Besides, , as the clerk was an officer de facto, a ministerial act performed by him as such is valid: See 20 Georgia Reports, 746. In the case cited, a judicial act by a justice of the peace, performed after his removal from the district, was upheld.
RAPHAEL J. MOSES, plaintiff in error, vs. BAGLEY & SEW
ELL, defendants in error.
55 283 56 282 57 261 66 745 68 833 75 501
1. An attorney at law who agrees to collect a note for a certain per centum upon
the "amount collected," is not entitled to fees for suing the case to judgment, but to entitle him to fees under his contract, the money must be col
lected. 2. In proceeding to collect, such attorney must bring to the business of col
lection, diligence and skill, and under a contract to receive ten per cent. if a compromise be effected, and fifteen per cent. if the case be litigated, his contract extends to all litigation touching the collection of the money, including what he may see fit voluntarily to do without a contract for addi. tional fees, and embracing the contest with other judgments and the defense of another suit against the same defendant, if in the way of his collection of the money, especially when at the time the contract was made, it was understood by the parties thereto, that such other suit was pending, and the necessity and mode of defending it was considered by the client and at
torney. 3. If a law firm undertake such collection, and pending the litigation it be
dissolved, the partner who remains in charge of the case and goes on with the litigation, does so under the contract his firm had made, if there be ne evidence that a new contract was made.
Moses vs. Bagley & Sewell. 4. The fact that in a conversation subsequent to the original contract and
after the dissolution of the firm, the attorney mentioned to the client that the litigation was heavier than had been contemplated by them, and he would charge additional fees, if the case was compromised, to the extent of $1,500 00, the client then being about to leave for Macon to try to compromise it, to which remark the client made no response, does not amount
to a rescission or modification of the contract. 5. A contract between client and attorney, wherein it is stipulated that the
attorney shall receive a certain per cent. for the collection of a claim upon, or out of, the amount collected, is not champertous, there being no agreement on the part of the attorney to bear the expenses of the litigation, or to save the client harmless from costs.
Attorney and client. Fees. Contracts. Champerty. Before Judge JAMES JOHNson. Muscogee Superior Court. October Term, 1874.
Reported in the opinion.
Bagley & Sewell placed in the hands of Moses & Garrard, a law firm in Columbus, Georgia, notes for collection on the Rock Island Paper Mill Company, in the spring of 1867, and White, Sheffield & Company and Tould & Rafferty, at their instance, also placed notes in the hands of the same firm for collection, on the same company, and steps were taken to collect the same. In the fall of that year, R. J. Moses, one of the firm, visited New York, and while there made a contract with White, Sheffield & Company, in relation to the collection of their votes, which contract was in these words:
“NEW YORK, December 28th, 1867. “Received of White, Sheffield & Company, on account of fees in case of Rock Island Paper Mills, $100 00. We are to charge ten per cent. on amount collected, if case is compromised, and fifteen per cent. if litigated, and in either event the $100 00 paid now is to be credited as an advance on said fees.
“MOSES & GARRARD."
Moses vs. Bagley & Sewell.
On returning to Georgia, on the 1st of January, 1868, R. J. Moses addressed a letter to Bagley & Sewell, for the firm, in which he stated, “I drew on you to-day for $100 00, which please pay. White, Sheffield & Company and Todil & Rafferty paid me in proportion when in New York, and we agreed that if the cases were compromised our firm should receive ten per cent. on amount collected, and if litigated further fifteen per cent. and in either case, the $100 00 vow paid, to be credited as an advance payment.” In the same letter allusion is made to a fraudulent suit brought by Joseph Winter, in the interest of the company for $20,000 00, which he promises to defeat, even by bringing a bill in equity if necessary, and the difficulties and delays are alluded to. The $100 00 draft was paid by Bagley & Sewell. Attachments and garnishments were sued out by Moses & Garrard, which were dismissed by the superior court of Muscogee county for want of payment of taxes; the cases were moved to the United States Court, but did not arrive in time for the docket (without fault on the part of Mosses & Garrard,) and were dismissed there. R. J. Moses then, the firm having been dissolved, sued out new attachments and garnishments, and gave new bonds, signing as attorney for the clients and as their surety; and finally, after the cases had been brought to this court twice on different points, and after fighting off the $20,000 00 Winter suit, and reducing it to something over $100 00, some $6,000 00 was collected. In 1871, pending the litigation, and before the cases were dismissed at Savannah, Mr. Bagley, of the firm of Bagley & Sewell, saw Mr. Moses in Columbus, and advised with him about a settlement or compromise. Moses advised against it, but said if he did compromise, he must bear in mind that the litigation bad assumed proportions that neither of them had contemplated; that he should charge additional fees, and if a compromise was made his fee would be $1,500; Bagley made no reply. Bagley & Sewell purchased the claim of White, Sheffield & Company, and were recognized by Moses as the owners of that paper also. After the money was thus collected a dispute arose as to fees, and to settle it, Moses vs. Bagley & Sewell. this rule against R. J. Moses was brought to the superior court of Muscogee county. The jury, under the charge of the court, found for the plaintiffs in the amount collected after deducting fifteen per cent, and the case is brought before us on exceptions to the charges and refusals to charge. These charges and refusals to charge, and the exceptions thereto, and assignments of error thereon, we think, may be reduced to four points:
1. First, the court charged to the effect that under the contract for a certain per cent. upon the amount collected, the defendant to the rule could not demand fees for reducing the claims to judgment nor estimate his fees upon the amount of the judgments. We agree with the court. His contract was to collect, and the plaintiff's contract was to pay him for collecting, and a per centum upon the sum collected.
2. The second point to be gathered from the charges and refusals to charge of the court is, that he ruled to the effect that under a contract to receive ten per cent. if the cases were compromised, and fifteen if litigated, the contract binds the attorney to attend to all litigation necessary to colleet to the extent of defen«ling other suits in his way, or contesting other judgments. Again, we agree with the court below. We can put no other construction upon this contract. The stipulation is explicit: if compromised so much is to be paid, if litigated, so much more. It is not stipulated that if the litigation be light or be confined to a particular court, the fee shall be so much; but if it be litigated it is to be fifteen per cent.; the extent of the litigation is not hinteil at. So far as the defense of the Winter suit for $20,000 00 is concerned, that is mentioned in the letter in which Mr. Moses draws for $100 00, and narrates the contract; and there he states that he expects to defend that suit even to the extent of filing a bill in equity if necessary. Taking the original contract with White, Sheffield & Company, and its repetition in this letter, and then the allusion to the Winter suit and suggestions about the necessity and mode of defending it, and we cannot conclude otherwise than that this suit and other similar difficul