Scobey v. Ross

5 Ind. 445

• Court: Indiana Supreme Court
• Decided: December 5, 1854
• Status: Published

Opinion

Perkins, J.

Assumpsit by Nancy Ross against John S. Scobey, for money had and received. Plea, the general issue. Trial by the Court, and judgment for the plaintiff. The facts of the case may be briefly stated. Mrs. Ross made a contract with Scobey and Test, as follows: “ Greensbmg, Indiana, September 21, 1846. I, Nancy Cole, alias Nancy Ross, have employed Charles H. Test and John S. Scobey as attorneys to collect a judgment rendered by the judges of the Decatur Circuit Court in chancery sitting, in my favor, against John Ross, in a suit for divorce, for five hundred dollars, and I agree to pay to said Test and Scobey one hundred and fifty dollars of said judgment for their services, when they shall collect the same. [Signed] Nomcy Ross.” Near the decree, above called a judgment, was a receipt in these words: “ January 27, 1851. Received of Marine D. Ross two hundred dollars on the opposite decree. [Signed] J. S. Scobey, attorney.”

About a month after Scobey received the money, Mrs. Ross demanded it of him, but he refused to pay it to her. She became dissatisfied, and discharged her then attorneys, and employed John Rymcm, Esq., to collect the balance of the decree against Ross; and, in April, 1853, commenced this suit against Scobey, in which she recovered judgment below for the 200 dollars and interest.

The question arises, upon what ground could Scobey retain said 200 dollars, or any part thereof?

Supposing the contract between Mrs. Ross and Messrs. Test and Scobey valid and in force, it had not been fulfilled. The 500 dollar decree had been but in part collected, and no claim for compensation arose under the agreement till the whole of said decree was collected. Supposing the contract valid, but broken and rescinded, then the claim of Test and Scobey would only be for a reasonable compensation for service actually performed, with, perhaps, damages for the breach of the contract; but such compensation and damages could not be deducted in this suit, as no plea, notice, or counter-claim was filed, but the general issue simply pleaded. Pruitt v. Miller, 3 Ind. R. 16.

J. S. Scobey, for the appellant. J. Ryman, for the appellee.

In any event, then, the decision of the Court below must be affirmed. We are consequently relieved from the necessity of deciding the question mainly labored by counsel in argument, viz., whether the contract above set out between Mrs. Ross and the counsel named, is champertous and void, and we shall not decide it. See, upon this point, Holloway v. Lowe, 7 Porter 488.—Lathrop v. The Amherst Bank, 9 Metcalf 489.—Satterlee v. Frazer, 2 Sandf. 141.—Dumas v. Smith, 17 Ala. 305.—Wallis v. Loubat, 2 Denio 607.

Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs.