Van Gieson v. Magoon

20 Haw. 146, 1910 Haw. LEXIS 46

• Court: Hawaii Supreme Court
• Decided: May 4, 1910
• Status: Published

Opinions

OPINION OP THE COURT BY-

HARTWELL, C.J.

Tbm was an action to recover $626.07 expended by the plaintiff for costs and attorney’s fees in the appeal to the. United States supreme court from a decree in this court in a suit in equity brought against him by one Maile to obtain a reconveyance of certain land that plaintiff had bought at an execution sale.' The plaintiff appointed the defendant as his attorney in the suit and made an agreement with him October 19, 1906, that the defendant, in consideration of the plaintiff’s conveyance to him of a portion of the land, would defend the suit and pay the costs. The decree made by the trial court in favor of Tan Gieson was reversed by this court. The defendant declined under his agreement to appeal the case to the United States supreme court, whereupon the plaintiff engaged another attorney for the purpose paying $309.42 attorney’s fees, $313.10 costs of court, $22.50 for printing brief and $7.05 for cabling in the case. The defendant paid only $25 of the costs on appeal. The plaintiff claimed at the trial that the agreement was ambiguous or equivocal in its expression of the duty of the defendant to attend to an appeal from the decree of this court, and for that purpose introduced parol testimony tending to show that the defendant admitted that it required him to do this. The jury rendered a verdict for the plaintiff for the amount claimed. Exceptions were taken by the defendant to the admission of the evidence explanatory of the written agreement, denial of his motion for a directed verdict, refusal of the court to instruct the jury in accordance with his theory of the case, namely, that the agreement was unambiguous and clear, requiring no appeal by Tan Gieson to be taken beyond this court to tbe instructions given to the effect that the evidence was admissible in order to explain an “equivocation” which the court found in the agreement, and to denial of motions for judgment non obstante and for a new trial.

The defendant submits that the agreement is void for champerty. This was presented as one of the grounds of the motion for judgment non obstante. It appears to be of a champertous nature which would make it illeg'al and void at common law. In Mossman v. Hawaiian Government, 10 Haw. 421, 434, 435, 436, the court held that it “is at least questionable” whether a conveyance by a disseizee to a third party is void as to the disseizor by the common law of England as ascertained by English and American decisions, but that “the doctrine contended for, if common law, is within the exception of the statute as otherwise fixed by Hawaiian judicial precedent or established by Hawaiian national usage.” In Pechell v. Watson, 8 M. & W. 690, the syllabus mentions maintenance as “a wrongful act at common law,” and the statutes relating to maintenance as “declaratory of the common law,” but this statement does not appear in the opinion. “It has always been considered, however, that champerty and maintenance are of-fences at common law and that the statutes only declare the common law, with additional penalties (Pechell v. Watson (1841), 8 M. & W. 691; Partridge v. Strange (1552), Plowden, 77, 88).” Laws of England (1 Halsbury) 52. “This was an offense at the common law.” 2 Coke’s Littleton, 368. b. The Mossmcm case may, however, rest safely upon the ground that the common law on the subject of livery of seizin never prevailed here. It was said in Henrique v. Paris, 10 Haw. 408, 413, with reference to the common law rule of the non-assignability of a right of entry: “There is not now and here the necessity that there was in England in the Middle Ages for laws against champerty and maintenance to prevent the stirring up of suits for purposes of oppression, nor any reason why a landlord should not convey his estate without the consent (attornment) of his tenant. Freedom rather than restraint of alienation is required under present conditions. The reasons for this rule having ceased, the rule itself should also cease.” Since that decision non-negotiable choses in action have been made assignable by statute. Sec. 1739 R. L.

The conditions of society under which the law of maintenance and champerty originated no longer exist. The common law of England is declared to be the law of Hawaii “except as otherwise expressly provided by the Constitution and laws of the United States, or by the laws of the Territory of Hawaii, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage.” Sec. 1 R. L. That portion' of the law of champerty which relates to the assignability of choses in action and conveyances by disseizees is otherwise provided for and fixed by precedent and usage and in part by legislation.

The contract is not unlawful because against principles of law in force here, nor is it a contract to do anything which is prohibited by statute or which is immoral. There is no generally acknowledged public policy against such contracts. Probably more frivolous and groundless suits are brought without any agreement for attorney’s fees than under such agreements. If an attorney undertakes to pay the costs he is more likely to do so in a meritorious case than in one devoid of merit. If he takes advantage of his superior knowledge and of the client’s poverty to obtain an unfair arrangement for sharing in the proceeds of the litigation the client’s remedy at law or in equity is ample.

It is not the practice of attorneys of recognized standing to encourage frivolous litigation. We believe that the “ambulance attorney” is not yet in evidence here and it is to be hoped that he never will be. But the promoter and stirrer up of strifes may at any' time exist and is not abated by laws of maintenance and champerty.

The objection to the agreement that it is illegal and void for champerty is not sustained.

We will next consider the meaning and legal effect of the agreement which is worded as follows:

“That said Van Giesen hereby appoints said Magoon and such persons as he may substitute for him or associate with him, attorney or attorneys in the case of C. B. Maile against said Van Giesen and another now pending in the circuit court of the first judicial circuit.

“In case said suit is decided in favor of said Van Giesen in the court of last resort to which the same may be appealed, he shall deed to said Magoon all of the land on Alakea street in Honolulu, Oahu, purchased inter alia by him at sheriff’s sale on judgment recovered for taxes against said Maile, said land to be free from all encumbrances made or suffered by said Van Giesen; and upon the delivery of said deed to said Magoon, he shall pay the said Van Giesen five hundred and thirty-five dollars with interest thereon at the rate of eight per cent per annum from the 5th day of July, 1904. Said Van Giesen is to forthwith execute a deed of said land to said Magoon and deliver the same to J. Lightfoot, he to hold it in escrow until the "termination of said suit. And in case it shall be terminated in favor of said Van Giesen, to deliver to said Magoon said deed upon the payment by him of said sum of five hundred and thirty-five dollars with interest thereon as aforesaid.

“Said Magoon is to defend free of charge said pending suit and any other suit that may be brought by said Maile or any one claiming under him, and in case judgment shall be against said Van Giesen, shall appeal the same to the Supreme Court of this Territory, and in case judgment shall be in favor of said Van Giesen in the ¡trial court and shall be appealed by the adverse party, said Magoon shall defend such suit to the court of last resort to which the same may be appealed. Said Ma-goon is to pay all costs of court that shall accrue after this date against said Van Giesen in said pending suit.

“Said Magoon agrees in case said pending suit shall be finally decided in favor of said Van Giesen to pay to said Van Giesen three-quarters of the rents now due from said Magoon, on account of said land, provided said suit shall not be appealed further than to the Supreme Court of the Territory of Hawaii, and one-half of such rents in case said suit shall be appealed to the United States Supreme Court.

“Said Magoon agrees to pay the mortgage notes for three hundred and fifty dollars and one hundred and sixty dollars heretofore given by said. Van Giesen and take an assignment of said notes and the mortgages secured thereby in case the mortgagees shall attempt to force payment of the same provided said Van Giesen shall keep the interest of said mortgage promptly paid; and in case of such assignment to said Ma-goon, he will hold the same, provided the interest shall be paid as aforesaid until the final determination of said pending suit.”

The plaintiff’s object in entering into this agreement was to hold the title obtained at the execution sale as against the claim of Maile “or any one claiming under him,” and the defendant was interested in securing for the plaintiff this land of which he was to have a part deeded to him by the plaintiff for the professional services of himself “and such persons 'as he may substitute for him and associate with him” in defending the suit and for “all costs of court that should accrue against Van Gieson in said pending suit,” which the defendant was to pay. Under such circumstances an agreement to defend the suit generally would not be limited to its defense in the trial court. In other words, this would not be like a retainer for that court only requiring a further retainer on appeal whether by one side or by the other. There is no reason why in an agreement to defend the suit the defense should stop with an adverse decree in this court any more than with an adverse decree by the trial court. There is nothing in the prior or subsequent parts of the agreement which limits the defense to any court in which it could be made. The provision requiring an appeal to this court from a judgment against Van Gieson and that Magoon shall “defend such suit to the court of last resort to which the same may be appealed,” if Van Gieson should obtain judgment in the trial court and Maile should appeal, does not limit the defense to those instances, especially when the object of the entire agreement is considered and that Magoon agreed to-pay all costs that should accrue against Van Gieson. To defend a suit means in popular and well understood phrase to take care of it in court. One who is not an attorney at law would take care of or defend a suit by engaging an 'attorney to do all that the law authorizes him to do in caring for the interests of the party whose rights in the suit are entrusted to his care. This is not done without resorting to the customary methods of asserting such rights whether by appeal, writ of error or exceptions. If the parties intended that the suit should not be fully defended such intention should have been expressed by a provision that the attorney would defend the suit in the trial court and in this court only. The requirement of an appeal to this court by Van Gieson and of a defense “to the court of last resort,” in case of 'an appeal by Maile, does not imply that an appeal would not be taken by Van Gieson from an adverse judgment of - this court. Ny the agreement Magoon was to pay Van Gieson three fourths of the rent then due on account of said land “in case said pending suit shall be finally decided in favor of said Van Gieson,” if the suit should “not be appealed further than to the supreme court of the Territory of Hawaii, and one-half of such rents in case such suit shall be appealed to the United States Supreme Court,” plainly contemplating an appeal to the court of last resort. Magoon’s agreement to pay Van Gieson’s mortgage notes for $510 and take an assignment of them and of the mortgages if the mortgagees should attempt to force payment, conditioned upon Van Gieson keeping the interest paid, required and authorized him to “hold the same provided the interest shall be paid as aforesaid until the final determination of said pending suit,” another recognition of the fact that a final appeal was contemplated. These provisions are equally applicable to appeals to the United States supreme court by Van Gieson as by Maile.

Magoon agreed to defend the suit against Van Gieson, which is described as the one which was pending in the circuit court of the first judicial circuit, Van Gieson deeding to him a portion of the land for which the suit was brought, the deed to remain in escrow until the termination of the suit. Magoon was to defend free of charge that suit and any- other which might be brought by Maile or any one claiming under him, and (1) if Van Gieson should lose in the circuit court he was to appeal the case to the supreme court of the Territory, and (2) if Van Gieson should win in the circuit court and Maile appeal Magoon was to defend it to the court of last resort to which the case might be appealed, namely, the United States supreme court. The contingency of Van Gieson winning in the circuit court -and Maile appealing to the territorial supreme court implies that Maile might win and Van Gieson appeal to the United States supreme court. If, however, Van Gieson should win and Maile appeal to the United States supreme court would Magoon’s agreement to defend the suit not require him to defend it in Washington? It is difficult to see how the case could be defended if the defense should be confined to the instances enumerated -above.

Taking into consideration then the object of the agreement and of its provisions we think that it required Magoon to conduct Van Gieson’s appeal to the supreme court of the United States -and to pay all the costs of court therein. This view of the agreement dispenses with consideration of the admissibility of evidence to explain its meaning or of the correctness of the instructions given in the view that the agreement contained an “equivocation,” since the error of admitting the evidence and giving the instructions was not prejudicial to the defendant, for the only alternative would have been, upon rejecting the evidence, to instruct the jury that the agreement required the defendant to conduct -and pay the expense of the appeal. It follows that the instructions on the parol evidence rule asked by the defendant were properly refused.

Lorrin Andrews for plaintiff. A. S. Humphreys for defendant.

The defendant claimed that he was released from any agreement to conduct an appeal to the United States supreme court by reason of the plaintiff’s refusal to take his advice to accept a compromise of $1800 offered by Maile. But the duty of an attorney to carry, out an ag’reement to defend a case is not discharged because his advice to compromise it is not taken.

The defendant further claimed that there was no evidence of the value of the services of the attorneys engaged by the plaintiff. The plaintiff’s right was to engage another attorney to perform the service which the defendant had agreed but declined to perform and the defendant would be liable for any reasonable expenditure incurred for the purpose. The reasonableness of the attorney’s fees would not be determined by the result of the ease nor be affected by a showing that another attorney would have charged a lower fee.

The declaration is in code form and its caption does not set forth the name of the action, indebitatus assumpsit, upon the defendant’s agreement, implied by the law, to recoup the plaintiff for his reasonable expenditure in securing the agreed defense. It was not a question of the value of the professional services for which the plaintiff paid, but simply whether they were reasonable in amount. In addition to the showing of their payment and of the kind and nature of the service performed, namely, preparing a brief in the case, it was requisite in the opinion of a majority of the court that there should be evidence that the fees were appropriate for such services.

Unless the sums paid for attorney’s fees, amounting to $300, shall be remitted by the plaintiff within five days a new trial is granted. The exceptions relating to the fees are sustained.