#### John Stent and Elizabeth his wife, *vs.*Benj. F. Hunt.

Tried before His Honor Judge Gantt, Charleston,jMay Term,, 183«.

*Judge’s Report.*— In the summer of 1833, the plaintiffs, by the. ■death of Joseph Motte, of New York, became entitled to a portion; *214wf the real and personal estate of the deceased. Mr. Hunt wats ■employed to actas the attorney of the plaintiffs, under the following written agreement.

*“*Memorandum of agreement between Benjamin F. Hunt and John Stent for himself and wife -That the said Benjamin F. Hunt shall proceed to New York, and fully investigate the estate of Joseph Motte, deceased, at Harlem, and shall prosecute the claim of us, the said John Stent and wife, to recover all the real and personal estate to which we may be entitled ; and we agree that the said Benjamin F. Hunt, shall retain tor his services twenty per cent, on the nett amount received, ia lieu of all fees and commissions, for investigating, adjusting, and paying over the amount so 'to be recovered. Charleston, 25th July, 1833. John Stent. Witness, John H. Peters.”

Mr. Richard Yeadon, jun. being sworn, proved the agreement, arid stated, that in the month, of December, 1835, he was employed by Mr. Stent, to call on Colonel Hunt, abuut this matter. He deposed, that Colonel Hunt disclosed to him every thing that passed between Stent and himself. That he understood from Col. Hunt, that on the 23d of May, 1833, he had received from the administrator of Motte, under a power of attorney from Stent and Wife, $1,400, and that on the 27th of March, 1835, he had received 15584 69 cents, the balance of the personalty. That the real estate, as he was informed by Mr. Hunt, had been sold for something over $16,000, of which one half was to goto the distributees in New York, and the other half to the distributees'in Charleston. That in his, Colonel Hunt’s, opinion, it was questionable, under the laws of New York, whether Stent and wife would receive $4,000 or $2,000, as their share. That Colonel Hunt was of the impression, that the claimants in Charleston, consisted of Mrs. Stent, (a niece of the deceased,) and three grand-nieces or nephews, the children of a deceased niece; and the question was, whether the grand-nieces or nephews were to take *per ¿apita,*with Mrs. Stent, or *per stirpes.*The witness further stated, that Mr. Stent authorized him to demand of Colonel Hunt the amount he had received of the personalty, deducting the amount of his commissions, and that Stent demanded the balance, with interest. This, Colonel Hunt was unwilling to accede to, alleging that he was entitled to receive, his commissions om the realty also, which he estimated at $4,000, (Mrs, Stent’s share,) and his commissions at $800. The witness understood from Colonel Hunt, that under the old law of New York, representation as to real estate did not go beyond brothers and sisters children, but under the revised code of laws in operation when Motte died, grand-niece* and nephews would come in, and the question was, whether they would come in *per stirpes*or *per*capita, with a niece living. The witness stated, that the interview between him and Colonel Hunt ■took place on return day, in December last, and as they could not come to an agreement, he took an appearauce from Col. Hunt t@ the present suit, with an understanding that they would negotiate further .; that seme negotiations afterwards took place.

*215A note of the 14th January, from Colonel Hunt, was them read, with an account of particulars* Then one in reply from Mr. Yeadon, of January the 18th, 1836. Mr. Hunt’s letter in an* swer to the last. A letter from Mr. Stent to Mr. Yeadon, dated. February 9th, 836, and Mr. Hunt’s answer thereto, were read.

Mr. Yeadon further stated, that Colonel Hunt told him that he had been put to a great deal of trouble in investigating this claim, that he had employed counsel, and that he had satisfied witness that the facts were so.

Ou the cross-examination of Mr. Yeadon, he said that Colonel Hunt had frankly satisfied him on every point, and that he had no doubt but that the account then shewn him had been presented to him. A map was also exhibited to Mr. Yeadon, who stated that Colonel Hunt had made known to him the difficulties which he had to encouuter about the real estate. Certain notes were exhibited, which Mr. Yeadon said had been shewn to him.

Respecting a bill of exchange, drawn on Mr. Hunt, he stated to witness that Mr. Stent had no right to draw alone, and that as the contract was an entire one, Stent could not alter it, and that he,. Hunt, held himselt entitled to take his commissions out of the first monies received. Hunt also had stated to him the impossibility of fixing the amount of his commissions till the sale of the real estate. Hunt also stated that ii would be necessary that Stent should execute titles before the money could be receiyed, that there was a question in relation to th.e real estate,, and Colonel Hunt insisted, that Stent had no right to call on him till he had completed the contract.

William Lloyd was sworn, and here it was admitted that Mr. Lloyd,under a power from Mr. Hunt, received in New York,. $1,400, of the administrator of Motte’s estate, and that it was paid over to Colonel Hunt’s agent there, by his direction. Mr. Lloyd deposed, that he liad communicated the, fact to Mr. Stent, in the course of conversation.

Edward Newhall, being sworn, said he had intermarried with one of the distributees of Motte. That Susannah North left four daughters, Mrs. Stent, Mrs. Brodie, Mrs. Reynolds, and Mrs. Gradick ; that all were dead and left children, except Mis. Stent, yet alive- That he is tkg aittorney of all the heirs in this part of the country, except Mrs. Stent. That the real estate sold for between sixteen and seventeen thousand dollars. That he claims their fourth part of the real estate coming to the heirs of Susannah, North. That the only delay in receiving the money arises from the powers of attorney to him being illegal. That they were sene back, and new powers were made out by all the heirs. That the last one was sent on about two or thee weeks ago. That he is not aware of any delay ou the part of the Stents. That he has been put to no great expense ; he found every thing strait and satisfactory. That he liad paid three or four dollars. That one of the heirs Jive.d near Columbus, in Georgia, and that his power could not be procured till lately. That he (the witness,) was requested som® tima last spring, to call on Colonel Hunt, to inform him who the *216heirs were. That ho thinks ho left it in writing with Colonel Hunt. That the paper shewn to witness is the account left. Thai he never heard there was any dispute in New York about it. He’ does not know that any application has been made to the court of •New York about the division of the estate.

Mr. Brodie, being sworn, confirms the account of genealogy given by the last witness. Mr. Newhall being called again, it was proposed to ask the witness the following question : “ Whether, in September last, at Mr. Stent’s request, he did not enquire at the surrogate’s office in New York, whether Mr. Hunt had not received money from the estate of Motte 1” This question was objected to, and the objection was sustained by the court. A letter from Mr. Hunt to Mr. Stent, dated at New York, October 10, 1835, was read. This letter shews the terms on which he had undertaken to collect, &o. Mr. Stent’s letter to Mr. Hunt, of September 30, 1835, was read. In this letter he communicates the information he h id received of Colonel Hunt having received money, and that he had drawn on him for $1,700. Another letter from Mr Stent, of October the 16th, 1835, was also read, denying the correctness of Mr. Hunt’s statement in his letter of September 30, 1835, and stating further, that if the draft was not paid he would consider Mr, Hunt no longer his attorney. Mr. Hunt’s reply of 10th November, 1835, was read, as also Mr. Stent’s answer of Novemher 21, 1886, adhering to what he had before said. Mr. Yeadon, after quoting the 1st vol. of the revised statutes of New York, page 762Í, sec. 89,-closed the evidence on the part of the plaintiffs.

The defendant offered no testimony, but by his counsel, Mr. Thompson, moved for a nonsuit, on the ground, that the action is a general *indebitatus assumpsit,*and the evidence produced is a special agreement. After hearing the argument, I sustained the motion for a nonsuit, principally on the ground, that between the parties litigant, a special contract or agreement subsisted, and on which an action could alone be maintained. It appeared that the defendant, under the contract, had taken much pains to ascertain the right of the plaintiffs, and to bring the business to a close. Was it competent for the plaintiffs, at such a crisis to revoke the power, and the re-by defeat the right of the defendant to commissions on all that could be secured' as belonging to the plaintiffs ? See Chitty on Contracts, 276. 13th Johnson’s Reports, 53. That the plaintiffs cannot recover under the money counts, where a special agreement subsists, see 12th Johnson’s Reports, 274 ; and that the action must be on the contract, see 19th Johnson’s Reports, 205,14th do., 326. 1st Hill, 384.

RICHARD GANTT,

*Ground of Appeal.*

That the cause of action was properly laid in the declaration, and amply sustained by the evidence, and the case should, therefore,have been permitted to go to the jury.

YEADON & MACBETH; *Plaintiff's Attorneys.*

*217Mr. Justice Evans

delivered the opinion of the court.

The facts of this ease, so far as it is necessary to state them, for the purpose of deciding this cause, are these : Mrs. Stent was one of the distributees of one Joseph Motte, who died intestate in the State of New York, on the 21st July, 1833. The plaintiffs executed a power of attorney to the defendant, authorizing him to ask, demand, and receive, Mrs. Stent’s share of the real and personal estate of Motte. On the 25th July, 1833, an agreement was entered into between Stent for himself and wife, and the defendant, in these: words, viz. “ That Benjamin F. Hunt, should proceed to New York,- and fully investigate the estate of Joseph. Motte, deceased, of Harlem, and shall prosecute the claim of us,the said John Stent and wife, *to*receive *all*the real and *personal*estate to which we may be entitled ; and we agree that the said Benjamin F. Hunt, shall retain twenty per cent, on the amount received in lieu of all foes, and commissions, for adjusting, investigating, and paying over the amount so to be recovered.” In pursuance of this agreement, the defendant proceeded to New York, and instituted the necessary proceedings, for the purpose of redueinginto possession Mrs. Stent’s share of the estate of Motte. In May, 1834, the defendant received of the administrator of Motte, $1,400 ; and in March, 1835, he received the further sum of $584.69, being the share of the plaintiffs of the personal estate. The real estate was afterwards sold for $16,700, of which sum it would seem, from the evidence, Mrs. Stent was entitled to (1-8) one eighth part. In consequence of some disagreement between the parties, this action was brought to recover of the defendant the plaintiffs share of the money received, after deducting the defendant’s commissions. The action was *inde-bitatus assump-sit,*for money had and received, to the plaintiffs use. It was objected, that as there was a special agreement between the parties, the plaintiffs should have declared on the special agreement. The presiding judge was of that opinion, and nonsuited the plaintiffs; and the motion in this court is to reverse that decision.

There, is no doubt of the correctness of the principle,- that where there is a subsisting agreement between the parties, upon which the plaintiff’s light to recover depends, there the action must be on the special contract, and the plaintiff cannot recover on the common counts. This doctrine is well explained in the case of Rye vs. Stubbs, 1 Hill, p. 384, and all the leading cases are re-erred to. If this action was for the non-performance of the *218agreement, tlieri (be principle contended for would apply. But' I apprehend, the plaintiffs’ right to their money is wholly independent of the agreement. Did the defendant receive the money under the agreement ? No. He received it by virtue of his power of attorney from the plaintiffs to him. Without this he never could have possessed himself of it. If the defendant had brought his action to recover his compensation of 20 per cent., he should have declared on the special contract, because independent of that, he had no right to the compensation. This case does not vary from the common case of attorney’s receiving his client’s money, which he has no right to retain. It may be recovered from him as money had and received to the use of his principal. A client delivers a note to an attorney and says, collect this, and I will give you 10 per cent. The attorney’s right to his commission depends on the contract; but his client’s right of action depends on the fact that the money is his and received for his use. Other points were made and argued, but as the nonsuit was granted on this gronnd ajone, it is not thought necessary to express any opinion on them. The motion is granted.

Ye ad on & Macbeth, for the motion.

Thompson, contra.

Filed 14th February, 1837.

JOSIAH J. EVANS.

We concur,

J. S. RICHARDSON,

A. P. BUTLER.

JOHN B. O’NEALL,