In an accounting for attorneys' fees for collection of claims
against the government, this Court followed the general rule of
affirming a finding of fact made and confirmed by both the courts
below unless the same is clearly erroneous, and held that certain
services were of the character generally designated as lobbying
services and could not be allowed.
Where an administrator of an attorney performs services and
incurs expenses in completing the business in which his intestate
and another attorney were interested, he should be allowed
therefor, and those services and expenses as well as those rendered
and incurred by the intestate can be settled in one suit where the
account has been treated by both parties as one account.
Where one interested in attorney fees for collection of
government claims can expect nothing until the amount adjudged has
been appropriated, laches will not be charged against him if he
bring the suit for an accounting within a reasonable period after
the passage of the appropriation act. In this case, two years was
not unreasonable.
A decree of the court of appeals of the District of Columbia
reversing the Supreme Court of the District as to some of the
findings of fact and conclusions of law and directing a new decree
to be entered in accordance with the opinion is not a final decree,
and an appeal will not lie therefrom to this Court.
The appeals in the above numbers involve the judgment of the
Court of Appeals of the District of Columbia (25 App.D.C. 582,
sub nom. Waggaman v. Earle), which modified the decree of
the Supreme Court, confirming the report of an auditor. The action
was brought by the appellees against the administrator of Earle's
estate for an accounting, and after issue joined it was referred to
an auditor to state the account upon the pleadings and proof placed
before him. The auditor reported in favor of allowing the
complainant, as due the Causten estate, the sum of $7,462.20. After
the report had been confirmed by
Page 207 U. S. 245
the Supreme Court, each side took an appeal and the Court of
Appeals reversed some of the findings and conclusions of law of the
court below, and directed a new decree to be entered in accordance
with the opinion of the court. The defendants appealed from that
order to this Court, and that appeal is the above number 12.
Fearing that there might be some doubt as to the finality of
this decree for the purpose of an appeal to this Court, the
parties, pursuant to the decree of the Court of Appeals, took the
case down to the trial court, which referred it to the auditor, who
restated the account in accordance with the direction of the Court
of Appeals, to which exceptions were filed by the defendant, which
were overruled, the auditor's report confirmed and another decree
entered, from which an appeal was taken to the Court of Appeals and
there affirmed, and from the decree of affirmance an appeal has
been taken to this Court and allowed, which is number 388.
The material facts which appear in the record are the following:
for many years, a series of attempts had been made to secure
legislation from Congress looking to the payment of claims made by
American citizens for damages arising from illegal seizure of their
vessels by the government of France, which the United States had by
treaty undertaken to pay. Such attempts had been unsuccessful,
until at length an act was passed by Congress, chapter 25 of the
Laws of 1885 (23 Stat. 283), which provided for the ascertaining of
claims of American citizens for spoliation prior to the
thirty-first of July, 1801.
During quite a number of years preceding the act of 1885, one
James H. Causten, a resident of the District of Columbia, had
accumulated papers which were regarded as of considerable value in
facilitating proofs of these claims. Mr. Causten died before the
passage of the act of Congress, leaving these papers in the hands
of Mr. William E. Earle, who was also interested in the prosecution
of said claims, and therefore desired the benefit of the use of
these papers, and, after the act of Congress, Mr. Earle and Mr.
Waggaman, the administrator of the estate
Page 207 U. S. 246
of Mr. Causten, entered into a contract as of the date of June
12, 1885, by which Mr. Earle was to be allowed to continue in the
possession and exclusive use of these papers in the prosecution of
the spoliation claims, for which possession and exclusive use he
was to pay to the administrator (Waggaman) twenty-five percent of
all fees which he should receive on account of these claims,
"after deducting from all such fees received, or which shall
hereafter be received by him, the proper expenses incurred by him,
since the passage of the act of Congress, referring said cases to
the Court of Claims in the prosecution of said French spoliation
claims, such as clerk hire, printing, advertising, office rent, and
the compensation of other attorneys necessarily associated with
him, and in whose compensation said Earle does not share. And
settlements between said Earle and said Waggaman, administrator as
aforesaid, or his successor in office, shall be made every six
months, and the proportionate part of said fees due said
administrator shall be paid over to said administrator or his
successor in office at such settlement."
Earle agreed to keep true books of account of all fees and
retainers received by him, and also of all expenses attending the
prosecution of the claims in which he should be engaged as counsel
or otherwise, the books of account to be open at all times for the
inspection of the administrator, or his successor in office.
Thereafter proceedings were taken by Earle in the Court of
Claims towards proving the claims of his clients, and the action of
that court recognizing such claims among others, to a certain
extent, was certified to Congress, as provided in the act of
1885.
On March 3, 1891 (26 Stat. 897), Congress made an appropriation
in payment of a portion of all claims so certified, and out of this
appropriation Mr. Earle received as fees up to July, 1893, the sum
of about $38,000, while his books showed an expenditure of over
$57,000, leaving Mr. Earle some $18,000 behind. Future legislation
was expected, which would turn
Page 207 U. S. 247
this deficit into a profit. It was hoped that a further
appropriation would be made in 1893, but that hope was not
realized. Mr. Earle died in August, 1893, and an administrator was
thereafter appointed. No further appropriation was made until March
3, 1899 (30 Stat. 1161, 1191). Under this appropriation, the estate
of Earle received some $50,000 in fees.
Negotiations for the settlement of the accounts between the
administrator of Earle's estate and the administrator of Causten's
estate were proceeded with, but proved unsuccessful, when this suit
was instituted by the Causten administrator for an accounting.
Pleadings were had in due form, and the case was referred to an
auditor of the court for a statement of the account, who, after
considerable testimony had been adduced, filed his report and found
the sum of $7,462.20 to be due from the defendant to the
complainant. Exceptions were filed by both parties, which were
overruled by the Supreme Court, and the auditor's report was
confirmed.
The Court of Appeals modified the decree entered by the Supreme
Court, as already stated.
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
In making up the account, the representative of the Earle estate
claimed a credit for the sum of $19,558.05 as part of the proper
expenses incurred by or in behalf of defendant in obtaining the
appropriations above mentioned. The auditor struck out $13,058.05
of such claimed credit, leaving $6,500 as a proper credit in favor
of the administrator of Earle. The thirteen thousand and some odd
dollars were stricken out by the auditor because of the fact, as he
found, that these moneys
Page 207 U. S. 248
were paid for lobbying services, in efforts to secure the
appropriation by Congress, which services he held were contrary to
public policy and discountenanced by the courts, and therefore not
to be allowed as a proper credit. The balance, $6,500, the auditor
held that the proof showed had been paid by the defendant for legal
services by the individuals named, and that such services were
valuable, and the amount paid was not excessive or unreasonable.
This amount consisted of three separate items, two items for $2,000
and one item for $2,500.
Upon the argument in the Court of Appeals, the defendant's
counsel insisted that the whole $19,000 should have been allowed as
a proper credit, while the plaintiffs' counsel asserted that the
disallowance of the 13,000-dollar credit was right, but that the
court erred in admitting the $6,500 as a proper credit. The Court
of Appeals, as we have said, affirmed that portion of the decree in
which the auditor disallowed the $13,000 claimed for credit, but
reversed that portion of the decree by which the auditor allowed
the credit of $6,500, and directed the decree to be amended by
striking out the above credit for that sum. This was upon the
ground that the $6,500 claimed was also illegal. The court said
that it was impossible to read the record without coming to the
conclusion that these alleged services were of the kind known as
lobbying services; that, although proof on the subject was meager,
yet, so far as it went, it tended unmistakably to show the illicit
character of the services, being personal influence and personal
solicitation with members of Congress, and that courts had branded
services of a like nature as improper, and for which no recovery
would be allowed.
The auditor before whom the case was tried and who heard the
witnesses, while holding that certain of the credit claims were
illegal, as claims for lobbying services, yet held that these
particular claims for services performed by members of the bar, and
representing the $6,500 allowed, were for proper professional
services, and as such should be allowed. The Supreme
Page 207 U. S. 249
Court of the District confirmed the report of the auditor, and
thereby held that the credit claimed for the payment of these
services was proper.
After a careful examination of the testimony in the case, we are
unable to concur with the Court of Appeals on this question. We
cannot find any evidence to justify a reversal of the report of the
auditor, confirmed as it is by the Supreme Court. The payments were
proved to have been made, and there is no evidence of any
illegality connected with the services performed sufficient to
justify an appellate tribunal in reversing the finding of the
auditor and the Supreme Court upon this question of fact. It is
unnecessary to embody in this opinion a reference to the testimony
in the case or to make extracts therefrom, but it is enough to say
that we are satisfied, from a careful perusal thereof, that we are
right in the conclusions which we have come to.
As to the thirteen thousand dollar credit which the auditor and
the Supreme Court and the Court of Appeals have all disallowed, we
are of the opinion that there was sufficient evidence to justify
its disallowance. The evidence would seem to justify the finding of
the auditor that these particular services thus paid for were of
the character generally designated as lobbying services, and in
such case it is proper to follow the general rule of affirming a
finding of fact made and confirmed by the courts below, unless the
same be clearly erroneous.
Again, the auditor disallowed in part a claim of some fifteen
thousand dollars, which the defendant asserts was paid to two other
attorneys for their services, under a special agreement which was
made between the administrator of the Earle estate and such
attorneys. The auditor made a finding of the facts in regard to
such employment, and carefully considered the conditions as they
appeared in the proof, and stated that he was of the opinion that
the services in question did not require the time and attention of
these three gentlemen, and that it would not be just to impose the
burden of the payment to them upon this case in such a manner as to
diminish the small
Page 207 U. S. 250
amount which would be found due and payable to the complainant.
He therefore in the account allowed a credit for but one-half of
the amount, which he said was, in his "judgment, a liberal
allowance for the present account." Counsel for the defendant have
failed to show from the evidence in the record that this item was
improperly disposed of by the auditor.
As to the alleged laches on the part of the complainant in
bringing this suit, we think the courts below have committed no
error in their judgments. The evidence showed that, during the time
of the life of Mr. Earle, although the books of account were quite
meager, yet, such as there were, had been examined by the
administrator of Causten, in the office of Mr. Earle, and that
objection had been made to the payment of the moneys to these
persons in regard to whom the charge of lobbying services was made.
There was no account stated, and the failure to bring suit for an
accounting until January, 1901, two years after the appropriation
act of 1899, from which payment might be made, cannot be regarded
as laches to prevent a recovery in this suit.
The objection that there was in reality no liability on the
original contract arising out of services performed by the
administrator after the death of William E. Earle cannot be
sustained. The accounting has been treated by both parties as one
proper to be made for the whole period, including that which
elapsed subsequently to the death of Mr. Earle. The defendant
recognized this right by making the accounting not only for fees
received prior to the death of Mr. Earle, but for such fees as were
received under the appropriation act of 1899. The account presented
by the Earle estate to the Causten estate admits an indebtedness
due from the administrator of the former of something over $2,000,
and the account purports to be one between the estate of Earle and
the estate of Causten, and it embraces not only fees received by
William E. Earle in his lifetime under the appropriation act of
1891, but fees received by the estate of Earle under the
appropriation act of 1899. Thus, both parties seem to have treated
the account as
Page 207 U. S. 251
one account, with reference to the act of 1891 and also to that
of 1899, and we think that, under the circumstances, the defendant
should be held liable to account therefor as indicated.
The account should be restated by allowing credit to the
defendant of $6,500, the amount paid the attorneys as already
stated. As to all other matters, the decree is right. The proper
disposition of the case is to dismiss the appeal in No. 12, because
the decree appealed from is not a final one, and to reverse the
decree in No. 388, for the purpose of making the proper credit to
defendant in the account.
Reversed.
