Chicago, St. Charles & Mississippi Railroad v. Larned

26 Ill. 218

• Court: Illinois Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Caton, C. J.

After the most careful examination of the testimony in this cause, we are forced to the conclusion that the plaintiff did not make out an employment or retainer by the defendant to conduct the cause on its behalf in the Supreme Court. There is not the least particle of evidence that any communication ever passed between the parties on the subject, nor is there any that the defendant had any intimation or supposition that the plaintiff proposed or professed to represent it, in that cause in the Supreme Court. Mr. Rees employed the plaintiff to attend to that cause on his behalf, and hejS recommended to Mr. Minard that the defendant should employ the plaintiff to attend to its interest. But this recommendation was never acted upon. It may be that the officers of the defendant refused to employ the plaintiff, knowing that its interests were identical with those of Mr. Rees, and that the success of Mr. Rees was necessarily their success. The plaintiff could not say a word or do an act for Mr. Rees, which did not at the same time operate to the same extent for the defendant. To sit quietly by and allow Mr. Rees’ counsel to conduct the cause thus situated, and refuse to employ counsel to aid in the matter, may have been ungenerous, but it certainly did not create a legal liability on the part of the defendant. There is nothing in the evidence to induce the belief that the plaintiff supposed that he was retained by the defendant, or that he ever did one act, or said one word, that he would not have done or said had the defendant settled with the opposite party, as all the • others did. except Rees ; or that he said or did anything in reference in any way to the defendant. Whatever there may be in this claim in a moral point of view, it would be a most dangerous precedent to hold, that because the defendant had sat silently by and let counsel employed by another argue a cause, which if won would secure his interest, therefore he agreed to pay the counsel in proportion to the benefit thus received. Certainly the defendant never supposed that it had retained the plaintiff, nor is there any evidence to show that the plaintiff supposed that he was retained by the defendant. Suppose the defendant had settled with Bennett the day before or the day after that cause was argued in this court, and before we had decided it, would the defendant have been liable to pay for these services ? It would have been just as much liable and no more, than as if such settlement had been made the day after Rees wrote the letter to Minard. In either case, if it had employed the plaintiff, it was liable, otherwise not. We cannot make out such a case, and the judgment must therefore be reversed.

Judgment reversed.