STANTON V. EMBREY, 93 U. S. 548 (1876)

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U.S. Supreme Court

Stanton v. Embrey, 93 U.S. 548 (1876)

Stanton v. Embrey

93 U.S. 548


1. Pleading over to a declaration adjudged good on demurrer is a waiver of the demurrer.

2. The pendency of a prior suit in a state court is not a bar to a suit in a circuit court of the United States, or in the Supreme Court of the District of Columbia, by the same plaintiff against the same defendant' for the same cause of action.

3. Writs of error from this Court to the Supreme Court of the District of Columbia are governed by the same rules and regulations as are those to the circuit courts. When, therefore, the record shows that an exception was taken and reserved at the trial, it is not necessary that the bill of exceptions be drawn out in form, and signed or sealed by the judge, before the jury retires, but it may be so signed or sealed at a later period, and, when filed nunc pro tunc, brings the case within the settled practice of courts of error.

4. An agreement to pay a contingent compensation for professional services of a legitimate character, in prosecuting a claim against the United States pending in one of the executive departments, is not in violation of law of public policy.

5. Where the amount of compensation to be paid was not fixed, evidence of what is ordinarily charged by attorneys at law in cases of the same character is admissible.

On the 13th of January, 1872, the plaintiff below, administrator of Robert J. Atkinson, filed his declaration claiming from the defendants $10,000 with interest from May 1, 1871, for services alleged to have been performed by the deceased in

Page 93 U. S. 549

prosecuting a claim in their behalf against the United States before the Third Auditor of the Treasury from 1865 to Feb. 3, 1870, and subsequently by himself, as administrator, before the Secretary and other officials of the Treasury Department.

The defendants pleaded in abatement the pendency of a suit against them, by the same plaintiff and for the same cause of action, in the Superior Court of the County of New London in the State of Connecticut, to which plea the plaintiff demurred. The court sustained the demurrer, and granted the defendants leave to plead over, whereupon they pleaded the general issue.

The defendants were the owners of certain steamers which were used by the United States during the war of the rebellion at New Orleans, La., and for which use they had a claim for compensation to the amount of $45,925.07. Atkinson prosecuted it until it was allowed by the accounting officers and a settlement made. He died before the warrant for the money was issued to the defendants. His services were rendered upon a contract for a contingent remuneration, the amount of which was not fixed. Attorneys prosecuting such claims before the departments usually charged contingent fees of from twenty to twenty-five percent, which the plaintiff's witnesses regarded as a reasonable charge. Atkinson, who was at one time Third Auditor of the Treasury, was conversant with the rules of the Treasury Department, and, as sole attorney, rendered services in this case, by preparing and filing printed briefs.

Several prayers for instructions to the jury were presented by the defendants, but the court refused them all, and charged substantially as follows:

"Where an attorney, in the exercise of his ordinary labor and calling, and with the instrumentalities of his professional learning and industry, undertakes to work out a desired result for his client, not through personal influence, but through the instrumentalities of the law -- by persuasion, as distinguished from influence -- such an undertaking is not an unlawful one, or contrary to public policy. That in dealing with the government and its departments, there is frequently and necessarily required a degree of knowledge and skill, and an acquaintance with forms and principles, not possessed by the unlettered citizen, before a person can obtain that which is justly his due.

Page 93 U. S. 550

When, therefore, the class of persons possessing such knowledge perform that labor as attorneys, no reason exists for defeating them of their compensation. If, therefore, Atkinson's employment was that of a professional man in the line of his profession, and not for the purpose of exercising and wielding an undue influence over the administrative officers of the government, and was so engaged by the defendants, the plaintiff is entitled to recover. That in the absence of any special agreement between the parties as to the amount of his compensation, the law presumes that his reward shall be commensurate with his labor; and, although the percentage or amount which other attorneys have received in similar cases cannot alone govern in this, it is proper to be considered in determining what the intestate's reasonable compensation should be, and that if they found that the claim was satisfied through the efforts of the deceased, and not those of others, the fact that his death occurred a day or two before the claim was paid does not deprive him of the fruit of his labor."

On the 13th of March, 1873, the jury rendered a verdict for the plaintiff for $9,185.18.

Thereupon the defendants moved for a new trial, which motion was overruled on the nineteenth of that month.

May 3, 1873, the bill of exceptions was signed by the presiding justice, and filed nunc pro tunc Aug. 13, 1874.

Sept. 29, 1873, the motion for new trial was heard at the general term of the court on appeal. The decision of the special term was affirmed, and judgment rendered on the verdict of the jury.

The defendants thereupon sued out this writ of error.

Mr. Thomas J. Durant for the plaintiffs in error.

Page 93 U. S. 552

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