Whitney v. Cowan

55 Miss. 626

• Court: Mississippi Supreme Court
• Decided: April 15, 1878
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the'court.

John A. Klein, a banker of the city of Vicksburg, filed his bill in the Chancery Court of Warren County, setting forth that he held as a stake-holder, without personal interest, the sum of $4,018.65, which was claimed both by Warren Cowan and by Benjamin D. Whitney, with the latter of whom was connected one O. Lovell; that Cowan had already brought a suit at law against him for the recovery of the money, and that Whitney was threatening to do so. He therefore prayed that these parties might be compelled to interplead and settle their respective rights. Cówan and Whitney each answered, admitting the allegations of the bill and averring their willingness to propound and litigate their respective claims. Thereupon a decree was entered by which Klein, the complainant, was dismissed with his costs, and Cowan and Whitney were directed to litigate inter sese their respective rights to the fund. • The litigation resulted in a decree in favor of Cowan, from which Whitney appeals.

The facts which determine the rights of the parties are controverted, and somewhat complicated. So far as they are essential, we state that view of them which we think is established by the weight of the testimony. In 1866, George Hawkins, Sarah Cowan, and James Cowan, administrator of John Cowan, deceased, citizens of Warren County, placed in the hands of Warren Cowan, an attorney of Vicksburg, a claim against the United States government for 228 bales of cotton which had been seized and sold by Federal officials during the Civil War, and the proceeds of which were in the treasury, to abide the claims of the owners. During the summer of 1866, B. D. Whitney, of Washington City, a claim agent, but not a lawyer, visited Yicksburg in search of claims to be prosecuted against the government. Either by Warren Cowan or by the claimants, Whitney was employed to assist in the collection of the Cowan and Hawkins claims, at a rate of compensation as to which the parties differ, and which it is not necessary for us now to decide. From some cause the prosecution of the claims was., so dilatory that it was not until August 13, 1868, at which time they lacked only seven days of being barred, that petitions for their enforcement were filed in the Court of Claims by the Hon. Caleb Cushing, who had been employed by Whitney for that purpose.

Nothing more seems to have been done in the matter until 1871, when Mr. Cushing, being about to depart as minister to Madrid, transferred his business in the Court of Claims, including these cases, to Bartley & Casey, attorneys, of Washington, receiving from these gentlemen a sum of money in gross for the fees due him, and they obligating themselves to compensate Whitney. Bartley & Casey then made a written agreement by which they contracted to pay Whitney a certain per cent upon the fees realized in all cases controlled by him, which were quite numerous.

In May, 1872, Bartley came to Vicksburg, and he and Warren Cowan together took the testimony upon which the oases were ultimately gained. Sarah Cowan having died, and James Cowan having become likewise her administrator, he entered into a written contract by which he assigned and .transferred to Warren Cowan and to Bartley & Casey twenty-five per cent each of the claims, or of the recovery to be had on them, in compensation of their services.

Warren Cowan, by an addendum to this contract, stipulated with Bartley & Casey that he would pay to Whitney whatever amount might be due him. Cowan, however, had no knowledge of the contract entered into between Whitney and Bartley & Casey, and his addendum, therefore, must be construed as referring to any amount that might be due Whitney under his original contract of 1866. After Bartley’s return to Washington a difficulty arose between his firm and Whitney in relation to the interest of the latter in the fees arising under the business turned over from Cushing, and on September 8, 1875, a new contract was entered into, by which Whitney’s interest was fixed at twelve and one-half per cent on the recovery in each cáse. Neither the claimants nor Warren Cowan had any knowledge of this agreement.

In May, 1876, judgments were rendered in the Court of ■Claims in favor of Hawkins and James Cowan, administrator, aggregating more than $30,000.

James Cowan proceeded at once to Washington to receive payment both for himself and Hawkins, from whom he held .a power of attorney. The warrant upon the treasury having been issued jointly to himself and his attorneys of record, Bartley & Casey, a difference arose between them as to the fees due Whitney. The attorneys, who, by their agreement with Whitney, had become liable to him for twelve and a-half per cent of the total recovery, insisted that this amount should be deducted from the twenty-five per cent due to Warren Cowan, and should be paid over to themselves, or to one Wilson, the agent of Whitney.

James Cowan declined to accede to this proposal, both because he insisted that if anything was due Whitney it should be settled between Whitney and Warren Cowan, and because he, James Cowan, had been garnished as the debtor of Whitney, in an attachment suit then pending in the Circuit Court of Warren County, brought by one Reese Cook against Whitney.

After an altercation extending through several days, it was at length agreed that eighty-seven and a-half per cent of the fund should be divided according to the several rights of the parties, and that twelve and a-half per cent should be placed in the hands of Klein, who happened to be in Washington, and ¡should be retained by him as a stake-holder. The twelve and a-half per cent, amounting to $4,018.65, constitutes the fund in controversy. It was delivered to Klein, along with about $6,000 of other moneys belonging to Whitney, all of it to await the event of the attachment suit of Cook v. Whitney, and the $4,018.65 to await (as we think is established by the testimony) both the event of the attachment suit and a contest between Warren Cowan and Whitney as to their respective claims upon it. Klein gave a receipt for the whole amount of money received by him, specifying that it was to be held to abide the event of the attachment suit of Cook v. Whitney, but making no mention that the $4,018.65 was also to be held subject to a contest between Warren Cowan and Whitney.

It is earnestly insisted that Warren Cowan cannot, by parol proof, vary the terms of this receipt, because it is in its nature • both a receipt and a contract, and, in so far as it is a contract, is governed by the ordinary rules in relation to written instruments. Conceding the full force of the principle, how does it aifect Warren Cowan? He was no party to the receipt, nor to the contract embodied in it. The money was in the hands of his client. It was deposited by the client with Klein, through an arrangement with Bartley & Casey, and with Wilson, the trustee of Whitney. Warren Cowan neither knew of nor assented to this arrangement, and never saw the written papers that accompanied the deposit. If those papers omitted a stipulation which should have been embraced, and by which his rights would have been protected, we know of no principle which precludes him from showing it. The rule which forbids the varying of written instruments by parol proof applies only to the parties to the writing. 1 Greenl. on Ev., sec. 279; 2 Whart. on Ev., sec. 923, and notes.

It is further insisted, with much earnestness by counsel for Whitney, that the assignment of one-half of the recovery to be realized on the claims, which was executed by James Cowan, administrator, to Warren Cowan and Bartley & Casey, in May, 1873, was invalid upon the ground that neither at law nor in equity can a portion of a claim for an uncertain and unliquidated amount be assigned so as to transfer to the assignee a valid title to the portion attempted to be transferred. There are, undoubtedly, respectable authorities which assert this doctrine, where the attempt of the assignee to enforce the assignment is resisted either by the assignor or by the debtor ; but it is impossible to see what connection this doctrine has with'the present controversy. Here the debtor (the United States government) has paid over the fund; the assignor, J. J. Cowan, acknowledging the validity of the transfer which he had made of half of it, has paid to Bartley & Casey the twenty-five per cent belonging to them: has paid to Warren Cowan one half of the twenty-five per cent belonging to him, and has placed the other half in the hands of Klein, in order that Warren Cowan and Whitney may settle their respective claims upon it. How, under such circumstances, Whitney can question the validity of the transfer of one-half the claim made by the owner, in May, 1872, to Warren Cowan and Bartley & Casey, even if we admit that such a transfer could not have been enforced in a court of equity in a suit between the parties, we are unable to perceive.

The court below awarded the whole fund to Warren Cowan, declining to consider whether Whitney was entitled to any portion of it under his original employment in 1866. This action, as we gather from the report of the special commissioner in the lower court, and from the argument of counsel here, was based' upon the idea that, in order, to the successful assertion of a claim in a proceeding by interpleader, there must be shown a right of ownership, an exclusive proprietary interest in the whole thing in controversy, and that nothing could be litigated in such a suit save the title or the right to the possession of the subject-matter of dispute. Inasmuch, therefore; as Whitney did not claim that under his original employment any portion of the amount to be recovered had been transferred to him, but only that he was entitled to a certain per cent upon, the sum to be realized, it was held that he could have no standing in this litigation.

We cannot assent to this view. Undoubtedly, there are many limitations upon the proceeding by interpleader. It can never be maintained where the party filing the bill himself desires to assert any interest in, or claim upon, the thing in controversy, and his bill must always contain a disclaimer of personal interest, and be accompanied by an affidavit of absolute neutrality. A tenant cannot compel his landlord to interplead with a stranger ; nor can a bailee compel his bailor to interplead with another, touching his right to the property held in bail. It is also true that interpleader will not lie if the complainant has come under some personal obligation to either of the defendants, independent of the title or the right to possession, because such defendant would, in that event, have a claim against him, disconnected with the title, which could not possibly be settled in a litigation with the other defendant. But these and other objections apply rather as against the complainant than between the defendants. If urged and established by either of the defendants, they will produce a dismissal of the bill; but they lose much of their force where the defendants, without objection, consent to interplead, and permit a decree discharging the complainant.

It is manifest that they should not be applied in this case. Warren Cowan’s claim, as asserted by James Cowan at the time of the deposit with Klein, was that the fund should be paid over to himself, iir order that he might pay to Whitney whatever amount was due him under the original contract of 1866. Whitney’s claim, as asserted by his trustee, Wilson, was that the whole fund belonged to him, and that he should receive it. It was deposited with Klein to abide the settlement of these conflicting claims. He became the stake-holder for both. When he filed his bill calling upon them to inter-plead, neither made the slightest objection, but both virtually ■consented, by their answers, that a decree dismissing Klein with his costs, and directing them to propound their claims, .should be entered. N,o appeal has been taken from this decree. Whitney, in preferring his claim, based it both upon Ms original employment in 1866, and also upon the contract entered into with Bartley & Casey in 1875. Because the latter claim is unfounded, it would be most inequitable to refuse to investigate the former,, and thus permit Warren Cowan to appropriate the whole fund in practical violation of the contract under which the deposit was made.

He admits, in all his pleadings and testimony, his liability to pay Whitney the amount due him under the contract of 1866, and his struggle has been to show that Klein received the money subject to a contest between himself and Whitney as to what that amount ivas. The Chancery Court, having the fund and the parties before it, should have settled this question, and not have paid over the whole fund to one and left the other to a suit at law.

We therefore reverse the decree of the court below, and remand the cause for further proceedings ; the sole question to be determined being as to the amount due Whitney, if anything, under his original employment in 1866, and in consideration of the services rendered thereunder, regard being had to the manner in which he discharged his duty.

Let the decree be entered accordingly.

A eeargument of the case was granted, upon the application of the appellants. Elaborate briefs were again filed.

Chalmees, J.,

delivered the opinion of the court.

In the former opinion delivered in this case we declared that the legal objections to the entertaining of a bill of inter-pleader were, generally speaking, available only against the complainant, who sought to compel the parties defendant to propound before the court their respective claims to the fund or property in his hands ; and that if those parties consented that the fund might be brought into court, and that the complainants might be discharged with his costs, and they then proceeded to litigate with each other their respective demands, the stringent rules regulating the proceeding by interpleader lost much of their force, and the court might, unshackled by technicalities, make such final decree between "the parties as the principles of equity jurisprudence might sanction or suggest.

That the correctness of this announcement might be thoroughly investigated, we granted the reargument. That reargument has been marked by great research and much ingenuity; but neither the investigations of counsel nor our own have conducted us to any authority decisive of the question.

We have seen no case, indeed, where the point arose. In all of those which have fallen under our observation, the objection to entertaining the bill has been urged against the complainant, who invoked the interpleading, by one of the parties who was called upon to interplead.

While, therefore, we adhere to our former adjudication, and think that it is both salutary and consistent with sound reason, it must stand upon its own merits, alike unsupported and unassailed by authority, so far as we can discover. We must not be understood as saying that there is any lack of authority in support of the proposition that interpleader will lie, though one party claims the fund or property by a legal, and the other by an equitable, title, because this is well settled and is conceded by counsel. Langston v. Horton, 3 Beav. 464; Lorzier, Exr., v. Ackerman, 2 N. J. Ch. 325; Yates v. Tisdale, 3 Edw. Ch. 71; Duncey v. Angove, 2 Ves. Jr. 312; Slavey v. Sidney, 14 Mee. & W. 801.

Our proposition goes a step beyond this, and is to the effect that, where both the defendants consent to interplead, and a decree is entered without objection for that purpose, the court may, at the final hearing, having the fund in its hands or under its control, fasten upon it, either in whole or in part, any equitable lien or trust which one of the parties may have established, though the proprietary legal title and ownership belongs to the other; that, in such case, the court is not bound to award it wholly to him who has the legal title, but may so shape its decree and distribute the fund as to do complete equity between the parties. This necessarily results, we think, from the doctrine that a court of equity, having, without objection from either party, taken jurisdiction, will not release it until complete equity has been done.

But counsel say that, conceding this to be the law, it can have no application here, because Whitney, under his contract with the claimants in 1866, not being a lawyer, obtained no lien, legal or equitable, on the fruits of the litigation with the government, but holds a mere money demand against them, a personal debt, which can give him no legal right to subject this fund to its payment, nor a locus standi in a court of equity to fasten a trust upon it.

This may be true as regards the original claimants, but he occupies a very different attitude towards Warren Cowan. He and Warren Cowan, under the contract of 1866, were gwsi-partners. They were to share together, in some uncertain .proportion, the fee agreed to be paid by the owners for the recovery of the claim. As against Warren Cowan, therefore, a court of equity will fasten upon this fund, now in its hands, which represents that fee, alien in Whitney’s favor. Again, neither this fund nor any part of the $30,000 recovered from the government could, under the regulations of the department, have been gotten out of the treasury or brought to Mississippi without the consent of Bartlej'- & Casey, the attorneys of record. From the anxiety manifested by them to protect Whitney’s interest, it cannot be supposed for a moment that they would have consented to the delivery of the money to Klein if they had supposed that Whitney was to be debarred of the assertion of any claim, legal or equitable, which he might have upon it. While Warren Cowan was no party to that agreement, and J. J. Cowan, his agent, acted without authority, it was very greatly to his advantage that the money should be drawn from the treasury, in the first place, and should be brought to Mississippi in the second. He cannot obtain the advantages of the arrangement and repudiate its burdens, nor refuse to be bound by it, in the sense in which it was undoubtedly understood by Bartley & Casey, and by Wilson, the trustee of Whitney.

The decree entered at the former argument will remain undisturbed.