On the facts set forth in the headnote to
Gilfillan v.
McKee, just decided, it is further held that Latrobe was
entitled to receive from the general fund the value of his
services, and that their value was $75,000.
This case also was argued in connection with
Gilfillan v.
McKee, ante, 159 U. S. 303. The
bill was originally filed by John H. B. Latrobe, July 13, 1888, six
days after the bill of Lamon and
Page 159 U. S. 328
Black was filed, and for the same general purpose of sharing in
the sum recovered by McKee, relying upon the trust contained in the
contract of July 16, 1870, between the Choctaw Nation and McKee, in
favor of persons who had rendered services theretofore in the
prosecution of said claim.
His allegation of service is substantially that, after the close
of the war of the rebellion, the Choctaw Nation employed him as
their professional advisor in all matters, including the net
proceeds claim, pertaining to their rights against the United
States, for which the Nation agreed to pay him a reasonable
compensation. That he immediately entered upon the duties thus
assumed, and prepared the treaty of 1866 between the Nation and the
United States, reinstating the Indians in their rights and
privileges. For this service, however, he seems to have been paid.
That he procured and submitted large masses of evidence to the
various committees of Congress having the matters in charge, and
made numerous arguments before said committees, and before the
executive officers of the United States, and stated accounts in
behalf of the Nation against the United States, and was engaged
five or six years in the active prosecution of their claim. That
these services continued until about the time McKee interposed in
the business as the leading agent of the Nation. That after that
date, his services were apparently not needed or desired by the
other attorneys, and he did but little, but is informed and
believes that McKee and those working with him prosecuting the
case, which he had previously prepared, and with the use of the
results of his professional skill and industry, secured the payment
of the claim. That, if the McKee contract were held to be valid,
then McKee was bound in equity and justice to pay to complainant a
fair and just compensation for the services theretofore rendered,
for which McKee should be charged as trustee. That it was agreed in
1866 between himself and the Choctaws that his services should be
rendered in conjunction with Cochrane, and that he subsequently
agreed with Cochrane that his compensation should be paid out of
the percentage reserved to Cochrane by his contract, and that he is
reasonably entitled to receive $75,000, which had been
Page 159 U. S. 329
agreed upon between himself and McPherson, Cochrane's executor,
as his proper compensation.
In his answer, McKee denied the general employment of the
complainant by the Choctaw Nation, and averred that, if he were
ever employed at all, it was only to assist and advise with the
authorities of said Nation in regard to the negotiation of the
treaty of April 28, 1866, and denied that under such treaty the
claim for net proceeds was secured, or that it had been prosecuted
to a successful conclusion through the provisions of such
treaty.
Upon a hearing upon pleadings and proofs, the case resulted in a
decree for $75,000 against McKee, with the further provision that
if anything were paid to the complainant, Latrobe, out of the fund
deposited in the court by McKee in the interpleader suit, such sum
should be credited in favor of McKee on the decree. Upon the
following day, a decree was entered in the interpleader suit, to
which Latrobe was a party defendant, awarding him his distributive
share of the entire amount, $75,000, out of the general fund of
$147,057.63 in controversy in that case. McKee appealed from the
decree in this case.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This is another one of the claims made under the trust expressed
in the McKee contract,
"to adjust the claims of all parties who have rendered service
heretofore in the prosecution of said claim, upon the principle of
equity and justice, according to the value of the services so
rendered."
McKee's argument in this connection is that this was a personal
agreement and obligation of himself and Blunt with the Choctaw
Nation, was not for the benefit of Latrobe, vested in no one any
interest in the money which might become payable under that
contract, and was not an assignment or dedication of
Page 159 U. S. 330
any part of the money which they might receive from the Choctaw
Nation in consideration of the performance by them of their
contract; in other words, that it was a contract of indemnity, by
which McKee undertook to save the Choctaw Nation harmless from any
claim that should be made for services that had been theretofore
rendered by other agents and attorneys. We do not so read it. A
trust so plainly declared would be of no avail, if the class of
persons who are described therein could not take advantage of it.
It was not needed to indemnify the Choctaws, since no possible
action could lie against them after the contract had been abandoned
by Black. It was evidently intended to satisfy any moral obligation
for services which had been performed but not completed, and to
throw the burden of adjusting and paying them upon McKee.
His theory, too, is inconsistent with his repeated statements to
leading members of the Choctaw Council, whose affidavits, received
in the place of depositions, show that he declared to the leading
authorities of the Nation that he considered himself obligated
under his contract to pay all outstanding obligations to persons
for the services rendered in the prosecution of the claim prior to
his own contract. In addition to that, and in corroboration of his
own statements, he exhibited a letter written by his own attorney,
and by his direction, to Leflore, in which he stated that:
"So far as I know, or have ever heard, every lawyer who has ever
rendered service or pretends to have rendered service in regard to
the net proceeds claim expects to get his pay out of the thirty
percent, and to get it through McKee. For myself, I expect to be
paid by Mr. McKee out of his thirty percent. I have no claim
against the Choctaw Nation if Mr. McKee's thirty percent is paid,
even if he should not pay me, but of this I have not the slightest
doubt. McKee's contract requires him to stand between the Choctaws
and their attorneys who have rendered service. He would be liable
to suit in the courts, here and elsewhere, wherever he could be
found, if he should neglect or fail to carry out his agreement with
the Choctaws to settle and adjust the claims of other attorneys who
have rendered service,
Page 159 U. S. 331
upon principles of equity and justice. The Choctaws would not be
liable to any such suit anywhere."
Here follows a list of parties who had rendered service in the
prosecution of the claim, among which is the name of John H. B.
Latrobe, with the statement that "he looks to Mr. McPherson,
executor of Mr. Cochrane, for his fee. Whatever sum Mr. Latrobe or
Mr. Cochrane gets comes out of McKee's thirty percent." McKee's
prompt repudiation of this promise, and his vigorous defense to all
these claims, argues either a serious impairment of memory with
reference to the transaction or a deliberately dishonest
purpose.
The services of Mr. Latrobe in this connection seem to have had
their origin in a visit made by the Choctaw delegation on their way
to Washington at Latrobe's residence in Baltimore. It seems they
expressed to him the fear that all their treaties with the
government had been abrogated by the war that had just ended; that
he expressed some doubt upon the point; said he would look into the
matter, and a short time afterwards called upon the delegation and
told them that he had made up his mind that their treaties had not
been abrogated by the war; that the right had been given to the
President to abrogate them by proclamation, and that he had not
done so; that the occasion had passed, and that the treaties were
still in force. The value of his services was subsequently agreed
upon by McPherson, executor of Cochrane's estate, and fixed at
$75,000. This was the value put upon them by the court below, and
we see no occasion to disturb it.
The decree of the court below is therefore
Affirmed.
