Phillips v. Edsall

20 N.E. 801, 127 Ill. 535

• Court: Illinois Supreme Court
• Decided: April 3, 1889
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the Court:

On and prior to the 12th day of June, 1884, there were pending in the circuit court of Cook county the cases of South Park Comrs. v. Charles B. Phillips et al., (including the various cross-bills and petitions' filed therein,) the case of Elizabeth Ann Phillips v. Rose M. Kerr, Charles B. Phillips et al., and the case of Williams, for the use of Blatchford v. Charles B. Phillips, and pending in the Superior Court of Cook county the cases of Eliza B. Eaton v. Charles B. Phillips, and Amos F. Tompkins v. Charles B. Phillips, and in the Criminal Court of Cook county, an indictment against Charles B. Phillips for libel. James K. Edsall and Samuel C. Edsall, the appellees, and John B. Hawley, attorneys-at-law, had theretofore been retained in said suits by said Charles B. Phillips, and had performed various legal services therein, and had also attended to other legal business for him. Some two months before the date above mentioned, they had, owing to a misunderstanding with said Phillips, withdrawn from said cases and turned them over to other counsel employed by him, and had brought suit against him for something over $2500, claimed by them to be due for services.

On said 12th day of June, 1884, an arrangement was made between the parties, the results of which were, that said suit for fees was dismissed, and appellees and said Hawley again took charge of the above enumerated causes pending against Phillips. On the same day, said Phillips executed to appellees and said Hawley his two promissory notes of that date, for $2500 each, one payable on or before one year from date, and the other on or before two years after date. At the, same time a written contract was entered into by and between , said Charles B. Phillips" of the first part, and appellees and said Hawley, of the second part, which, after stating that the party of the first part retains the parties of the second part to act as his attorneys and counsel in the cases above mentioned “pending in the circuit, Superior and Criminal courts of Cook county, respectively,” provides as follows :

“And the parties of the second part hereby agree to accept such retainer and employment, and to act as the attorneys and counsel for the said Phillips, and generally to do all things deemed necessary in the due course of proceedings in said courts, to faithfully represent and defend his interests in said cases, according to their best judgment and ability, in connection with such other attorneys, if any, as said Phillips has employed or may see fit to employ for that purpose; and in consideration of the premises, and also in consideration of the amount due said parties of the second part for services heretofore rendered as the attorneys and counsel for said party of the first part, the said party of the first part hereby agrees to pay the said parties of the second part the sum of $5000, one-half of which is to be paid on or before one year from the date hereof; and the remainder on or before two years from the date hereof, according to the tenor and effect of two promissory notes of even date herewith; and to secure the payment of said notes, the said party of the first part hereby assigns to the parties of the second part such portion of the amount which may be found to be due and payable to the party of the first part from the South Park Commissioners for the lands conveyed and procured to be to them by said Phillips involved in said suit, wherein said South Park Commissioners are complainants, as may be sufficient to pay the said amount so agreed to be paid to said parties of the second part; and said party of the first part hereby authorizes said parties of the second part to receive said amount so assigned to them from the said South Park Commissioners, and to give all necessary receipts therefor, either as such assignees or as the attorneys for the said party of the first part; and it is further agreed and understood, that said notes shall, in-any event, become due and payable as soon as the amount to be paid for said land by said South Park Commissioners shall be ascertained and determined.”

In September, 1884, Hawley, one of the payees of the notes, assigned his interest in the same to said James K. Edsall.

The cause of the South Park Comrs. v. Charles B. Phillips et al. was heard in the circuit court during the month of July, 1884, and on the 9th day of January, 1885, a decree was entered therein, which provided, among other things, as follows:

“It is therefore ordered, adjudged and decreed, that the complainant, the South Park Commissioners, do pay into court the sum of $36,664, (being the contract price, at $800 per acre, for said 45t8^q acres,) together with interest thereon •at six per cent per annum, from August 27, A. D. 1870, to the date of such payment, after deducting from said total of principal and interest the amount hereinbefore found to have been paid by complainant to said Phillips, with interest at six per cent per annum on each of said payments from the date thereof to the date of such payments, to-wit: 0

$300 with interest at six per cent from Dec. 15, 1869.

100 tt (6 Feb. 4, 1870.

450 tt « Apr. 4, 1870.

450 tt tt Apr. 6, 1870.

215 tt « Apr. 16, 1870.

150 H « Apr. 12, 1870.

500 « it May 15, 1870.

250 tt U Sept. 10, 1870.

250 tt tt Dec. 14, 1874.

250 tt a Mch. 11, 1875.

250 tt tt July 26, 1875.

300 « tt Jan. 16, 1876.

500 tt it July 3, 1876.

200 tt tt Sept. 26, 1876.

—To be herein distributed according to the rights of the parties as herein found and decreed, and that upon such payment into court, the South Park Commissioners be discharged from further liability therefor, and that the title of said complainant in and to said north 45T8^ acres of the east half of the south-west quarter of said section 18, upon such payment, be confirmed and established.”

Shortly after the rendition of said decree, to-wit, on the 16th day of January, 1885, the appellees filed in the circuit court the supplemental bill or intervening petition which is now in question before us, against said Charles B. Phillips and the South Park Commissioners, asking that they, said appellees, be decreed to have a lien upon the fund due said Phillips from the park commissioners, for the payment and satisfaction of the amount due or to become due upon the aforesaid notes and contract, and for other relief. On the 19th of October, 1885, said Phillips was ruled to answer the supplemental bill within twenty days, but his answer thereto was not filed until May 10,1887. Three days thereafter, on May 13,1887, the cause, and matters involved in the supplemental bill, and the issues joined thereon, were referred to a master in chancery to take and report the evidence, with his conclusions thereon. Thereafter, on May 26, 1887, said Phillips entered a motion for a trial by jury of the issues of fact in the cause, and to set aside the order of reference to the master, which motion was denied by the court. On June 28, 1887, the master made a report of the evidence and his findings, and his conclusion was, that the material allegations of the. supplemental bill were supported by the proofs, and that the prayer of said bill should be granted. Phillips filed exceptions to the master’s report on July 6,1887, and on the 12th of July, 1887, he, by leave of the court, filed a cross-bill against appellees and John B. Hawley. On the 26th of July, 1887, the cause of said supplemental bill was heard by the court, and the exceptions to the master’s report were overruled, and said report in all things approved and confirmed, and a decree rendered in favor of appellees, against Phillips, for $5763 and costs, and the same ordered to be paid out of the fund in the custody of the court. This decree was afterward, upon the appeal of said Phillips, affirmed in the Appellate Court for the First District, and the cause is now brought to this court by him by a further appeal. Various objections are urged to the decree, and the more important of these will be briefly considered.

The claim is made that the court of chancery had no jurisdiction to entertain the supplemental bill or intervening petition of appellees, and that there was a full and adequate remedy at law. The bill or petition of appellees was not, as seems to be assumed, a suit by attorneys against their client for the purpose of recovering the value of .professional services rendered, and therefore, in substance, for the recovery of unliquidated damages, nor did it involve any question of an implied lien for fees, in their favor, upon the decree or judgment recovered for their client against the park commissioners. The theory of the supplemental bill was, that appellant had, by written contract, assigned to appellees and Hawley a portion of the amount due and owing to him from the South Park Commissioners, and that the whole amount so due and owing him was a fund in the hands and under the control of the court, and that such assignment should be protected and enforced by the court, and a de'cre'e entered preserving the equitable lien which appellees had, under the contract, upon such fund. A part of a debt or chose in action is not assignable at law, but can be assigned in equity, and in such ease a trust will be created in favor of the equitable assignee on the fund, and will constitute an equitable lien upon it. Story’s Eq. Jur. sec. 1044; Pomeroy v. Manhattan Life Ins. Co. 40 Ill. 398. It is clear, not only that appellees had no remedy at law to enforce the assignment contained in the contract, but also that the jurisdiction of the chancery court, a trust being involved, was unquestionable.

These same considerations also dispose of two other objections urged by appellant against the decree. One of these is the claim that the bill was prematurely filed, and the other, the refusal of the court to submit the issues of fact in the case to a jury. The bill being to enforce an equitable interest in a, fund which was under the control of the court, it was entirely proper to file it either before or after the decree in the principal case of South Park Commissioners v. Phillips et al., and. wholly irrespective of the question whether the debt secured by the notes and written contract was due or not. The exhibition of a bill or petition is proper at any time after the assignment, in order to give the court notice of the rights of the assignee in a fund which is the subject of pending litigation, and if the rule were otherwise than as stated, the rights of such assignee would be extremely precarious. So, also, the ease being one which was properly cognizable, in equity, under one of the original heads of chancery jurisdiction, it was entirely discretionary with the court whether it would or would not submit any issue or issues of fact to a jury; and had such submission been made, the verdict rendered would have been simply advisory, and might have been disregarded by the court. The motion for a jury trial was not made until some two weeks after the reference to the master, and after a considerable portion of the testimony had been taken, and was not for the submission of any particular issue or issues, but for a trial by jury of all the issues of fact made by the pleadings. The action of the court in refusing the application was eminently proper. Eev. Stat. chap. 22, sec. 40.

It is urged it was error to deny the motion of appellant to continue the cause until answer was made to his cross-bill, and the cause was at issue thereon. This cross-bill was not filed until July 12, 1887, and the motion was entered July 15, 1887. The master had made his report of the evidence, and his conclusions thereon, on the 28th of June, 1887, and a motion was pending for the confirmation of such report and the entry of a decree in accordance with its recommendations. The matters and things alleged in the cross-bill were, with a few exceptions, contained in the answer to the bill of appellees, and the facts alleged in, the cross-bill, and not stated in the answer, had transpired and were known to appellant prior to the filing of said answer. If the" cross-bill was proper and was necessary, no good reason is suggested why it was not filed with said answer. The cross-bill made a new party to the suit, who was not before the court, by the service of process or otherwise, and to have waived the original bill until the cross-bill was ripe for hearing, would have caused vexatious delay. The filing of a cross-bill does not necessarily stay the hearing upon the original bill, and when there has been a want of diligence on the part of a defendant in chancery, and the original cause is ready for hearing, he can not interpose a cross-bill, and insist, as a matter of right, upon the postponement of the hearing of the original cause. Wiley v. Platter, 17 Ill. 538.

It is suggested, that as amendments were made to the bill at the hearing, it opened up the case, and appellant was entitled to file a new answer, and with it a cross-bill, and that the original bill thereby lost its precedence over the cross-bill. The two amendments then made were unimportant, and were the mere statement of facts already proven by appellant himself before the master—i. e., that Mr. Hawley had resided in Nebraska since the summer of 1886, and that the South Park Commissioners had, on the 23d day of April, 1887, paid into court the money due Phillips under the decree of January 9, 1885; and, moreover, the latter fact was already within the judicial knowledge of the court from the record of the principal cause in which the supplemental bill was filed. These amendments did not and could not necessitate a new answer or the filing of a cross-bill. The cross-bill was filed July 12, and the amendments were not made until July 26, and appellant then made no offer to amend his pleadings or file new pleadings, and did not renew his motion, which had been overruled on July 15, to continue the cause until the cross-bill was ready for hearing. We find no error in the ruling of the court upon the motion for continuance.

The principal contention of appellant is, that appellees and John B. Hawley did not faithfully represent and defend his interests, as required by the contract of June 12, 1884, in the suits and causes mentioned in said contract. The master, in his report, and the court, in its decree, each finds, in substance, that appellees and said Hawley had faithfully, and with due care, skill and diligence, complied with and performed their part of said contract. Six suits are mentioned in the contract, and three of these were satisfactorily ended within a short time after the contract was made. The cause of Elizabeth Ann Phillips v. Kerr, Charles B. Phillips et al. is not yet disposed of, but it was heard in respect to the matters in controversy between said Elizabeth Ann Phillips and the Kerrs, in February, 1886, and at the time of the hearing of this case was still held under advisement in .the trial court. It appears from the evidence, that nothing further can be done in said suit in behalf of appellant, without said Elizabeth Ann Phillips is successful in her controversy with the Kerrs, but that in that event he may be entitled to relief upon his cross-bill against her. It further appears that appellees and said Hawley have thus far done all required of them in said cause to advance the interests of their client, and are ready and willing to perform all services in said litigation that may be hereafter necessary in order to protect such interests.

It is objected, that in the suit of Williams, for use of Blatchford v. Phillips, which was finally disposed of in July, 1885, there was, in two respects, a failure on the part of appellees and said Hawley to perform their duty under the contract of June 12, 1884,—that Hawley did not appear in court and take part in the trial of said cause, and that appellees failed to procure a bill of exceptions to be signed and filed within the time limited therefor by the order of the court. Appellant was entitled, under the contract, to the services of all three of the attorneys in each one of the suits mentioned therein. But, it will be noted, the contract was to act as his attorneys and counsel, and do all things deemed necessary to faithfully represent and defend his interests in said cases, according to their best judgment and ability. The spirit of the contract did not require that all three of the attorneys should be present in court when each and every step was taken in each and every one of the six cases, unless in their best judgment such presence was necessary or advisable. The conduct of all the parties to the contract in regard to the trial and proceedings, in this and the other suits, clearly indicates it was understood by them as is above suggested. It appears that all three of the attorneys acted together in the case in question, and that appellees, after consultation with Mr. Hawley in regard to the case, attended to the trial, and that no complaint was made, at the time, that they did not all three participate therein. The case of Morgan v. Roberts, 38 Ill. 65, cited by appellant, is not here in point. In that ease there was an abandonment of the suit and of the contract by one of the counsel employed, while here no such abandonment is shown by the evidence.

In respect to the matter of the bill of exceptions, it is to be noted that under the contract appellant had the right to employ other attorneys to act in conjunction with appellees and Mr. Hawley, and that he did retain Mr. Sherburne to assist in the trial of the case. The evidence conclusively shows that after the motion for a new trial was overruled, appellees offered to prepare a bill of exceptions, but that appellant objected to their having anything to do with it, and insisted it should he prepared and attended to by Mr. Sherburne alone. Through some misunderstanding with the presiding judge and opposing counsel, the bill of exceptions was not signed and sealed. It is manifest that it was through no fault of appellees or of Mr. Hawley that a bill of exceptions was not filed within the time allowed. The acts and conduct of appellant himself having prevented appellees from taking a bill of exceptions, he is, in equity, estopped from complaining of their failure so to do.

It is urged, that in the case of South Park Comrs. v. Phillips et al. reported in 119 Ill. 626, appellees and said Hawley failed, in several respects, to comply with their duty under the contract. We have carefully examined the evidence in the record, and fail to find proof that there was a breach of professional duty on their part in failing to charge, in the answer of Phillips, that the contract of December 10,1869, was obtained by fraud, or that any facts were stated to them or data furnished them upon which they could properly have made such a charge, or that the want of such charge worked the rejection of any testimony, or injuriously affected the rights of appellant.

In view of the fact that the park commissioners, on the 27th of August, 1870, took possession of the 45 j8^ acres of land which was found to belong to appellant, the trial court allowed him interest from that date on the $800 per acre to be paid therefor, and at the same time gave the commissioners credit for the several payments they had made to appellant on the contract, with like interest thereon from the dates of such respective payments, and directed that all the computations of interest should be made to the date of the payment into court by the commissioners, of the contract price and interest. It is claimed that appellees and Hawley were derelict in duty, in that they did not procure a decree for a sum in gross, composed of the principal of $36,664, and interest computed thereon at six per cent per annum, from August 27, 1870, to the date of entering the decree, less the credits due the commissioners,, and that by their failure to do so, appellant lost a large amount of interest upon interest which would have accrued upon the decree if properly entered between the date of such entry, January 9, 1885, and the date of payment, April 23, 1887. There might be force in this point were it not for the fact that the possession taken by the commissioners on August 27,1870, was not, as to appellant, either tortious or under the law of eminent domain, but was under and in pursuance of the contract of December 10,1869, and by the terms of that contract, and under the proofs, the compensation payable to him was not due until the title to the land was freed from all adverse claims by the final judgment, in 1882, of the Supreme Court of the United States, in the case of Kerr v. South Park Commissioners and Phillips. It would seem, then, the decree was, in respect to the matter under consideration, very favorable to appellant,—that by it he was allowed interest upon the $3(3,664 for a period of between eleven and twelve years, before the money was due iinder his contract, and in the absence of any provision therein for interest. Clearly, it would not have been advisable in his solicitors to object to the decree proposed by the court on the ground it did not afford him a more liberal allowance of interest.

The other objections made to the manner in which appellees and Hawley attended to the interests, of their client in the South Park Comrs. case, do not seem to require special- notice. Suffice it to say, we do not regard them as substantial or tenable.

It is insisted, that under the contract of June 12, 1884, the $5000 to be paid appellees and Hawley did not draw interest until April 23,1887/—the-time the money was paid into court by the commissioners,—and that the action of the court in allowing interest on said sum from the date of the entry of the decree of January 9, 1885, was erroneous. It was agreed in the contract “that said notes shall," in any event, become due and payable as soon as the amount to be paid for said land by said South Park Commissioners shall be ascertained and determined.” The two matters in controversy in the South Park Commissioners’ suit, as between them and appellant, were, the ascertainment of the quantity of land he owned and was entitled to "be paid for, and the question whether he was to be paid $800 per acre as the value "of the land. The decree settled these questions, and determined the rights of all the parties to the litigation. The decree did not, as would have been the proper and better practice, make the computation, and state in words and figures the amount of principal and interest the commissioners were decreed to pay for the portion of the land awarded to appellant. It did, however, find the number of acres awarded to him (45T8^30-), the price per acre ($800), the total amount of the contract price ($36,664), and fixed the date (August 27, 1870,) from which interest at six per cent per annum should be computed thereon up to the date of payment; and it also found the amounts and dates of the several payments made on the land, and directed that said payments, with interest at six per cent per annum on each of such payments, from the date thereof to the date of the payment of the decree, should be deducted from said total of principal and interest required to be paid for the land. The decree contained all the necessary data from which, by mere computation, the exact amount to be paid for the land could be calculated, and in the nature of things there could be but one result. That is sufficiently certain which can be made -certain. In our opinion, the amount which was to be paid appellant for the land by the South Park Commissioners, was, within the import and meaning of the contract of June 12, 1884, ascertained and determined by the decree of January 9, 1885, and the $5000 then became due and payable, and, under the statute, bore six per cent interest after that date.

We find no manifest error in the decree or in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here..