Supreme Court

CASES ARGUED AND DETERMTNED IN THE SUPREME COUR T OP THE STATE OF ARKANSAS AT THE MAY TERM, 1880.

WASSELL VS. ARMSTRONG, Ad. of Carr011. for 1. CLAIMS AGAINST THE GOVERNMEN T : Assignment of : Contracts prosecuting. Lucy H. Carroll, as administratrix of the estate of George W. Carroll deceased, entered into a contract with John Wassell, an attorney, by which it was agreed between them that Wassell should, at his own ex-pense, prosecute a claim of Carroll's estate against the government of the United States for a large amount of cotton, which was seized in 1873 by the military authorities of the United States and converted to the use of the government, and if he recovered nothing he should receive nothing for his services and expenses incurred in the prose­cution of the suits; but if he should be successful, in whole or in part, he should pay over to her only fifty dollars per bale for every bale he should recover judgment for; the overplus, if any, to be retained by

him for his compensation for his services and expenses incurred in the prosecution of the suits; and full power was given him to execute to the United States all necessary vouchers, receipts and acquittances, and generally to perform all things necessary to carry out the stipula­tion of the contract. Held: That the agreement was a mere per-35 Ark.] (247)

248 SUPREME COURT OF ARKANSAS, [35 Ark. Wa.ssell vs. Armstrong, Ad. of Carroll. sonal contract for a contingent fee, arid was not an a.ssignment or transfer of the claim, or any part or share of it, or interest in it, to. Wassell, absolute or conditional; and, therefore, was not within the prohibition of the act of congress of February 26, 1853, entitled, "An act to prevent frauds upon the treasury of the United States." []i'or the terms of this act, see copy in the opinion.—REP.]

2. WITNESSES : Party, as to transactions with deceased adnninistrator. A party in a suit in which an administrator de bonis non is the adverse party, is not prohibited by the constitution of 1874 from testifying of statements and conversations of the former administrator who is dead.

APPEAL from Pulaski Chancery Court Hon. DAVID W. CARROLL, Chancellor. F. W. Compton and S. W. Williams, for appellant. B. D. Turner and J:111: Moore, contra.

[This cause was argued before Hon. W. M. HARRISON, Jus-* tice, and Hoii. JESSE TURNER and G. W. CARUTH, Special Judges—The Hon. E. H. ENGLISH, C. J., and J. R. EAKIN, J., being disqualified.]

TURNER, S. J. This is a suit in equity, originally brought by Lucy H. Carroll, as administratrix of the estate of George W. Carreal, deceased, against the defendant John Wassell. She alleges in the bill that her intestate, who died in the year 1863, at the time of his death owned a large amount of cotton, exceeding one thousand bales, which, after his death, was seized by the army of the United States during the military occupa­tion of the country by the federal troops in the year 1863, and tonverted to the use of the government.

That about the time of her appointment as administra­trix of said estate, in July, 1865, the defendant, a practicing

35 . Ark.] MAY TERM, 1880. 249 Wassell vs. Armstrong, Ad. of Carroll.

lawyer, came to her, representing that he had acquired valua­ble information in regard to the seizure of said cotton, where­by he would be enabled to recover the value thereof from the United States government, and solicited plaintiff to employ him as her attorney to collect the same, and she, having confidence in the integrity and good faith of the defendant, was induced to place the claim in his hands for collection, upon an agreement that he would collect the same for a com­mission of 10 per cent, upon the amount collected, the expenses attending the collection to be borne by the-plaintiff ; and there­upon the defendant took charge of the claim and instituted ssuit for the recovery thereof in the United States court of claims. That she, being old and infirm, and wholly inexperienced

in matters of business, soon yielded the entire management of the estate to the defendant, relying upon him entirely to adopt such measures and procure such orders as were necessary, and which he frequently did, without previous consultation with her, and without her knowledge or consent. So that during nearly the entire time of her administration of the estate, the defendant has had and exercised entire control and manage­ment of the same, on account of her confidence reposed in him, she believing that he would honestly and efficiently manage the

same. The plaintiff further alleges that some time after the

former contract between plaintiff and defendant about the collection of the cotton claim against the government, the defendant represented to her that there was so much diffi­ulty and expense, doubt and uncertainty about the suc­cessful prosecution of the claim, that the fee agreed upon between theni was not sufficient, and greatly magnified the trouble and expense which he had already had, and the expense he would still have to incur, and the plaintiff

250 SUPREME COURT OF ARKANSAS, [35 Ark. Wassell vs. Armstrong, Ad. of Carroll.

then consented to an arrangement whereby the defendant should pay all expenses, costs, etc., about prosecuting the claim, and if he recovered the amount from the government he was to pay the plaintiff for her dower, or one-third, twenty thou­sand dollars, and the remainder of the claim to be divided equally between the estate of the said George W. Carroll and the defendant; and that in making the calculation that there would be twenty thousand dollars coming to plaintiff in her in­dividual capacity as dower, it was understood that her third would be about fifty - dollars per bale.

The plaintiff. further , alleges that the defendant, some time in the year 1872, succeeded in collecting on said cot-• ton claim from the government of the United States, the sum of ninety-six thousand dollars ($96,000), the adjudged value of three hundred and forty-seven bales of said cotton, and that on the twenty-seventh of October, 1872, he fildd 'n the probate court of Conway county a report of his pro­ceedings as her attorney in the premises, in which he falsely and fraudulently claims the right, under certain pre­tended agreements stated to have been made on the twenty-third of March and the fifteenth of April, 1868, and long after he had been retained in said cause, to retain as his fee for collecting the claim, the entire amount collected ex­cept the meagre sum of fifty dollars per bale, amounting to seventeen thousand three hundred and fifty dollars, which he proposes, in said report, to pay over to plaintiff, and re­fuses to account for the residue of money so collected on mid cl a in,.

That at the same time the defendant, in connection with said report, filed an account-current in plaintiff's name as administrator of said estate, and at the ensuing January term of the probate court of Conway county, procured an

35 Ark.] MAY TERM, 1880. 251 Wassell vs. Armstrong, Ad. of Carroll. order to be made confirming said settlement, which she alleges was made and said order procured by the defendant, without any knowledge or information on her part, and with the fraudulent intent of giving to his illegal exaction the authority of judicial sanction, and thus secure himself from the conse­quences of the fraud practiced upon the plaintiff and the benri­ficiaries of the estate. Copies of the report and settlement are exhibited with the bill. The plaintiff further alleges, that the defendant, on the fifteenth of April, 1868, meditating the fraud he is attempt­ing to practice upon her, and wishing to clothe with legal authority any contract into which he might be able to in­veigle her, procured an order of said probate court author­izing her to employ an attorney to collect the said claim, upon such terms as she might deem proper; and after a lapse of four years, and after the collection of the claim, - he procured an order of the said court confirming the appoint­ment of the defendant prior to the date of said order, furthpr authorizing the - defendant to prosecute all demands in favor of said estate. Copies of these orders are exhibited with the bill. That defendant pretends that she entered into a contract with him, by which it was agreed that he should pay all ex­penses incurred in the collection of said cotton claim, and re­tain for his fee all that he should collect thereon in excess of fifty dollars per bale, to be paid her as administratrix of the estate, and the further sum of ten dollars per bale, to be paid her in her individual right. That said pretense is utterly false; and the pretended agreements rc ferred . to in s•aid report, and which were in­tended to be legalized by the order referred to and exhib­ited with the bill, if, in fact, they exist, were forged by the defendnt, or she was inveigled by his fraud and

252 SUPREME COURT OF ARKANSAS, [35 Ark. Wassell vs. Armstrong, Ad_ of Carroll. deceit, into signing them, without any knowledge of the true character and meaning of their contents. Plaintiff prays that said last mentioned contract be set aside, .and the first mentioned contract' between the parties in regard to said cotton claim be enforced, and that defendant be allowed only 10 per cent. commission on the amount col-lected. • That he be required to produce into court the pretended con­tracts referred to in exhibit "B i" that the same, and the illegal orders fraudulently obtained by him in the Conway probate court, in reference thereto, be set aside, and he be required to account and pay over to the plaintiff all the money collected by him from the United States on said claim, less 10 per cent. commission of the same. That defendant be required to make a complete statement of all his dealings with said estate, and that he account for all sums of money belonging to said estate, in his hands, unac­counted for. The defendant filed his answer on the nineteenth of October, 1874. Admitting that the said George W. Carroll, at the time of his death, owned, or claimed to own, about one thousand bales of cotton, which he says was seized, on account of the disloyalty of the said Carroll to the government of the United States, as abandoned property, in the year 1863, of which about 500 bales were released to Ayliff & Hanger. That defendant had, at the time of the seizure of said cotton, and afthrwards, while it remained . in the hands of the United States officers at Lewisburg, Little Rock, and places adjacent, acquired valuable information in regard to said seizure, and had taken notes and kept track of the cotton until it was shipped from the state. That it is true he represented to the plaintiff that he believed that, by

35 Ark.] MAY TERM, 1880. 253 Wassell vs. Armstrong, Ad. of Carroll. means of the information he had obtained, it would be possible to trace the proceeds of the cotton into the treasury of the United States, in the event provision should ever be made to pay the owner for such cotton. Defendant states, positively, that he did not, at the time in said bill alleged, or any time before or after that, solicit plain­tiff to employ him to collect said claim from the government of the United States. He admits it to be true, that, three or four months after plaintiff had been_appointed administratrix of said estate, she applied to him to take charge of said claim, and look after the same, and to ascertain what, if any, right the plaintiff, as such administratrix, had against the United States on account of said claim, and to prosecute it if it should appear '-the plaintiff had any rights or remedies in reference thereto

under the laws of the United States. Denies that he became the attorney of the plaintiff, or under­took the collection of said claim upon an agreement that he would collect said claim for a commission of 10 per cent. upon the amount collected, all expenses about collecting the same, over and above such commissions, to be paid by plaintiff or upon any such, or like agreement. Defendant avers that no contract of any kind was en­tered into between plaintiff and defendant at the time men­tioned in said bill, as to what compensation he should re-ceive, nor until long after that time; and he avers that the only contract which was ever entered into with plaintiff, as to the amount of compensation he should receive, is that of the twenty-third of March, 1868, referred to as exhibit

And he denies, unequivocally, that he ever misrepre-sented, or magnified, , the difficulties and uncertainties at­tending the prosecution of said cotton claim, but avers

254 SUPREME COURT OF ARKANSAS, [35 Ark. Wassell vs. Armstrong, Ad. of Carroll. that, in reference thereto, he acted in perfect good faith, giving her all the information he possessed on the subject. Denies all unfair dealing with plaintiff, and every allegation of fraud charged in the bill.

Denies that fie ever procured orders and took any im­portant steps in the management of said estate, without pre­vious consultation with her, or without her consent, and that he did not take and assume the management of said estate, or in any manner conduct the affairs thereof, without the knowl­edge or consent of plaintiff, in any instance or particular whatever.

That he managed the affairs of said estate with the greatest candor and fairness, as far as the same were intrusted to him, rind that no order, or steps, important or unimportant, were ever taken by him, except with the knowledge and consent of plain-tiff, nor until the matter had been fully explained and under-stood.

Defendant avers that, after repeated efforts were made to procure counsel in Arkansas, and at Washington City, to prosecute said claim, every effort failed, although both plaintiff and defendant exerted themselves to procure such counsel.

That, in this condition of things, the plaintiff offered to sell said claim to defendant for five thousand dollars, and when he declined to buy the claim, plaintiff proposed to him that he should take the whole control of the claim, furnish­ing all moneys that should be necessary to prosecute the same, pay all attorneys' fees, and all other expenses, without recourse on her or on said estate, in the event of failure, for such moneys as be might expend and lay out, and account to said estate for the sum of fifty dollars for every bale of cotton he might re­cover for; plaintiff adding that, unless' he would do this, the whole claim must be abandoned. That, after reflection, and

35 Ark.] MAY TERM, 1880. 255 Wassell vs. Armstrong, Ad. of Carroll. upon the earnest and repeated solicitations of the plaintiff, de­fendant concluded to accept plaintiff's proposition, and to fur­nish means to prosecute the claim, although he regarded it like an adventure in a lottery scheme—he had a himclred-fold more chances to lose than to win. That, at that time, the statute of limitations •ad so nearly run against said claim that it would have been bar­red before the fifteenth of April, 1868, the time when the pro­bate court of Conway county would next meet, and to have waited until the meeting of the court to procure authority from said court to plaintiff, as such administratrix, to make and exe­cute a contract with defendant to prosecute said claim, would have delayed the matter until the claim was fully barred, and until the estate would have had no semblance of claim against the government. That, in view of this fact, on the twenty-third of March, 1868, an agreement, in writing, conforming, in all things, to the proposition made by plaintiff, .was made and executed by the plaintiff, as such administratrix, and the defendant; which agreement is referred to as exhibit "A," and made part of de-fendant's answer. That, at the time said contract was made, the said ad-ministratrix, not having been empowered by the order of the probate court of Conway "county to make such contract, and it being absolutely necessary that suit should be im­mediately brought upon said claim, to prevent it being barred by the statute_ of limitations, for these reasons, tha contract was executed without such order, upon the ex­press understanding that plaintiff, as such administratrix, should apply to said probate court, at the next term, for an order authorizing her to employ an attorney to prosecute said claim, and • that, upon such order being made, plaintiff

256 SUPREME COURT OF ARKANSAS, [35 Ark. Wassell vs. Armstrong, Ad. of Carroll. would ratify and confirm the contract of the twenty-third of March, 1868. That afterwards, , on the fifteenth of April, 1868, while the probate court of Conway county was in session, upon the appli­cation of plaintiff, as administratrix of said estate, an order was n4ade and passed by said court, authorizing plaintiff, as administratrix of Said estate, to employ an attorney for said estate, on any terms she might think proper, to collect the claim for said cotton. Defendant files a transcript of said order from the records of the probate court of Conway county, marked exhibit "B," and makes the same a part of his answer. That afterwards, on the twentieth of April, 1868, after re­citing the said order, the plaintiff, as such administratrix, an indorsement of that date in pursuance of said order and the agreement of plaintiff, she fully ratified and confirmed said contract of the twenty-third,of March, 1868, which instrument of writing is duly signed by said administratrix and defendant, and is written upon the same sheet of paper as the original contract, and a copy thereof is contained in exhibit "-A" and made a part of the answer. That this was the only contract ever made between plaintiff, as administratrix of said estate, and defendant, touching the collection of said claim, and the terms upon which it should be done. That no contract or agreement fixing the amount of his compensation, mitil the contract in exhibit "A" set forth, was ever executed or entered into between plaintiff and defendant, and that this was the only contract, written or verbal, ever made between them, touching or fixing his com­pensation for his services and outlay in prosecuting said

Defendant admits that he did, after a long and tedious

35 Ark.] MAY TERM, 1880. 257 W assell vs. Armstrong, Ad. of Carp litigation and great expense, succeed in collecting on said cctton claim, from the government of the United States, the sum of ninety-three thousand three hundred and fifty-three dollars and sixty-five cents ($93,353.65), being the adjudged value of three hundred and forty-seven bales of cot-ton. That he filed a report of his proceedings, after submitting the same to plaintiff and approved by her, in the Conway pro­bate court, at the time in said bill stated. That at the same time he filed an account, exhibited with and made part of the answer, in the name of said administra-trix, and he avers that he did s<1 at plaintiff's request; that said account-current and report Were not filed until they had been fully examine& by plaintiff and approved in all things, and not until the account-current had been signed by plaintiff, as such administratrix. That by said report and account-current, it fully appeared and was definitely stated that defendant had, in pursuance of said contract, accounted to said estatC for fifty dollars per bale of the amount collected upon said claim, and re­tained the remainder according to the terms of his contract with plaintiff.

That the order confirming said settlement was not obtained by the procurement of defendant, but in the due course of the practicer of said court, and after the account had been on file in said court for the time required by law without any excep­tions being taken thereto. Defendant avets that all of said orders were regularly and lawfully obtained, and by the knowledge, consent and direc­tion of said plaintiff, and were not sought for or procui-ed by defendant for his protection. That all of said orders were granted on the motion of the plaintiff lay said pro-35 Ark.-17 °

258 SUPREME COURT OF ARKANSAS, [35 Ark. Wassell vs. Armstrong. Ad. of Carroll. bate court, on full hearing and understanding of all the matters involved.

That after said cotton claim had been collected, defendant paid over, by plaintiff's direction, to the creditors of the estate, the sum set out in said report, taking proper receipts therefor, which said plaintiff, with a full knowledge and understanding of the whole affair, accepted in full and entire satisfaction of the amount due the estate on said cotton claiin, and that when said report had been made and all questions adjusted and set­tled between plaintiff and defendant in relation thereto, he did pay to said plaintiff the sum of ten dollars for every bale of cot­ton for which recovery was had, which plaintiff accepted and re-ceived, and defendant denies that he thought of or intended to bribe plaintiff, or purchase her silence, or that the sum of ten dollars per bale was given or accepted in violation of plaintiff's or defendant's duty, or in fraud of the rights of the benefic­iaries of said estate.

On the twenty-first of January, 1879, the plaintiff moved the court to exclude the evidence of the defendant con­tained in his answers to certain interrogatories in the original deposition taken on the sixteenth of January, 1879, and the answers to certain interrogatories of the second deposition, taken on the eighteenth of January, 1879, because the same relate to transactions between defendant and Mrs. Lucy H. Carroll, who was deceased at the tiine of taking depositions, and on the ground of irrelevancy. Whereupon the cause was submitted to the court for final hearing, on all the papers filed in the cause.

The Chancellor, after delivering a written opinion in the cause, rendered a decree against the defendant for the sum of sixty-two thousand five hundred and three dollars and

35 Ark.] MAY TERM, 1880. 259 Wassell vs. Armstrong,. Ad. of Carroll.

thirty cents, and costs. From this decree defendant appealed to this court. The decision of this cause depends upon the effect to be given to the contract of the twenty-third of March, 1868, exhibited with and made part of defendant's answer.

Was it a valid and binding contract? Or, was it unauthor­ized by law ? This contract and memorandum thereto attached, is in the words and figures following: "Memorandum of agreement made in Conway county, Ar-kansas, this twenty-third day of March, 1868, between Lucy

H. Carroll, administratrix of the estate of George W. Carroll, deceased, and John Wassell, attorney at law, Little Rock, in said state: "WHEREAS, There was a quantity of cotton, in bales and otherwise, on the plantation of the late George W. Carroll,

in the winter of 1863 and 1864, said cotton being seized by the federal authorities; and, whereas, said John Wassell, being conversant with the matter of seizure, as aforesaid;.and, whereas, in 1865, the said administratrix secured the services of the said Wassell, as her only attorney to prosecute the claim of the estate for the recovery of the cotton, so seized, or a por­tion thereof ; and, whereas, said estate being utterly insolvent, there being no money on hand, or anything to convert into money; that without services or means of an attorney versed in the matter, all is lost to the estate and its creditors; and, whe_ r_e as no one could be found, having a knowledge of the mat- ters, and who would advance necessary means to pay expenses in prosecuting a suit or suits for said cotton, except said Was-

sell. It is, therefore, agreed between the administratrix and said Wassell that he should prosecute the said claim against the said government of the United States for said cotton, so

260 SUPREME COURT OF ARKANSAS, [35 Ark. Wassell vs. Armstrong. Ad. of Carroll. taken for confiscation and sale by the military authorities, at his own personal expense and risk; that _ should he recover nothing by - said suits, he should lose all moneys he may have expended, and his labor and legal services performed by him-. self and other attorneys he may employ in prosecuting said claim, whether in the court of claims of the United States, or on appeal to the supreme court of the said United States: Should he be successful in said claim, in whole or in part, he shall be required only to pay over to the said administratrix the sum of fifty dollars per bale on the number of bales he may recover judgment, the overplus, if any, to be retained by him for compensation for his own services, or those he may assoc­iate with him in said suits. That full power is given .him to perform, in all things, whatever may be required to enable him to carry out the foregoing stipulations. To give all proper re­ceipts and vouchers, releases or acquittances to the United States government, or any of its officers, or agents, in this be-half, as fully as said administratrix herself could do if person­ally present. "Lucy H. CARROLL, adm'x.