Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-19
l see no other alterna-

understanding ana Misunderstanding Oh
the respective parties "a to the contract,
and this is kept up until May II, 1866,
when james +. Baily, as the agent and at
torney Of the bank, enters into the cores |
pondence that ensues. Hornberger states
that he had made out an account Of fees |
amounting to S25, 440 80; that there was |
about $685. coo of notes, etc, passed to |
him by the bank, inclusive Of interest and |
damages, in these notes, and that the fees
are based upon the per centage on $685.
$50 Is this sum embracing about SlOO,OOO,
being the per centage on the second action
on the same paper 70 that amount, and for
defending suite against the bank TO about
$4,000.
On the 9th of June, 1866, the bank Of
fered respondent Sl5, 900 as a compromise,
and proposed to release him of all obllga'
tions upon bonds, which was refused.
The answer and cross bill further dis
closes that respondent had collected to this
time in Planters Bank money, $3l, 126 03,
in greenbacks, S4,5l6 SO; that he had paid
10 the bank in Planters Bank money,
SlO9O2 20. and the balance was deposited
in the First National Bank at Clarksvllle,
| and that debtors and parties had paid to
| Weaver, under the orders Of respondent,
about Sl9,644 SO, making in all collected,
and in which he was instrumental IN coll
ieciing, Sl05,2S7 90, since the 10th OF
| MAY, 1865.
The cross bill prays a specific perform
| ance Of the contract, and that all liens be
enforced, also general relief
In answer to the cross bill, Weaver says
| that at no time was il ever understood that
the schedule of the GAINESVILLE bar was
agreed upon or adopted, in whole or in part,
rs portion Of the contract, bat the same
was, early in the nego tiRtion, repudiated
as eKorbitant, and especially was that fea-
ture of it which required fees TO be paid in
advance, as by that rule the lawyer EN-
ployed might die, and fail to perform the
service; that the amount to be put in suit
was about 100000 and interest that it
was desirable to pnt the whole in the hands
of one lawyer, and pay him the commits
sions agreed upon at the time of the col
lections; that Hornberger stated that he
was exempted from the operations of the
schedule so far a. the bank was concerned,
and wac at perfect liberty to treat with
the bank independent of the schedule.
This answer states that the letter of the
10Th of April, 1865, forms the basis of the
contract made, and that the sams was ac-
cepted and understood as an agreement to
collect the claims for the per centage speci-
fed, TO be paid, at the time of the collec-
ton that this proposition was regarded as
high. but the bank was mainly induced to
accent il because no lawyer Of the bar was
permitted to treat for the business on any
terms independent of the schedule; that
the bank was so informed by Hornberger
himself and subsequently by Mr.. House,
when he was written TO TO see the other
lawyers.
The answer further states that the bank
had recently, and for the first time, been
informed that one member of the Clarks-
vile bar did agree with Mr.. House to ac-
cept the business upon a commission OF tve
per cent. on collections, but such mem
Der afterwards believing that he too
was bound by the schedule, although he
had settled in GAINESVILLE since the sche-
dule had been adopted, had withdrawn
+ his proposal thai 1t was believed that the
| commissions which Hornberger would
| receive would amount to $4,000 after
= House sent a list of the debts due the bank,
| with comment as to solVency, in which be-
, | lief the officers of the bank were strength
| ened by the representations of Hornberger,
| and trusting to these, the notes were or
dered to be handed TO Hornberger; that il
had been the uniform custom of the bank
, and the country to pay after the services
| had been rendered that the letter written
, | 10 House in August, 1864, related to the
payment of past fees of Hornbergsr and
| House and did not direct House to pay
fees when the claims were handed out
| but +" to pay debts as they accrued in
, | stead of leaving them 10 accumulate
, | that the subsequent correspondence
| in regard to the payment Of
fees was so shaped and worded by Horn
berger, by reference to his present neces
sities in explanation of his reason for
wanting money, as to assuage his appica'
iton from a demand for money due him tC
! an advance TO relieve his necessities, and
that at no time did he understand the ref
erence made by Hornbeger to the schedule
. | on this point as referring to other than fee'
that were due him on the old contract
, | that these might be construed with refer
| ence to the time of their payment to come
under the schedule, but that he could no
| have possibly understood it as referring tt
| the fees under the new contract, as th,
schedule was wholly excluded from this
and that any agreement that he Weaver
, had made TO settle his (Hornbergers) &C
, count referred alone to the old account o
, Horaberger & House. the claims of 1864
+ together with his commission under thi
= new contract, so far as he had collected tb,
money; that he asked him what was tn,
q amount of the account, and when told tina
q | il had not been footed up, but that it would
: amount to $40 900 or $4,000, he (Weaver
expressed at once his entire dissent sur
- prise, and disapproval. This answer de
= MES Hume's authority to act or make an
D. contract with an attorney, other than wa
specially given in the letter to him. Tha
I more than one-half the claims are insol
, vent, that quite all are litigated, that di!
T. ferent suits are brought against severa
, parties to the same note, or bills, and eacl
l. of said suits sought to be charged with tn,
r per centage.
= That these constructions of the contrac
T. we're az different, the charges so unreason
r able, il was thought best 10 dissolve the re
Y lation. That the bank now, and at al
4 times, is ready TO pay all reasonable feef
and release, by the execution of other, o
indemnity bonds, said Hornberger and al
4. other parties as its sureties.
g We have quoted thus Literally from tn
2: pleadings in order 20 set out by referenc
to what was proposed and discarded pre-
4 vious TO entering into a contract finally
+ the views OF each party at the time it wa
r entered into; also to allow each party th
L full benefit, in his own language, of con
r struction Of the contract, and to appreciat
:. the differences and disagreements that aros
n under the same
T. Ii appears from che record that At tn
{. time the schedule was adopted there wer
/. but four attorneys of the Clarksvilie ba
}. practicing, the others being in the South
e that subsequently one ofthese wentupon ia
z bench, and one or more were employed 0
{ had been retained TO defend any and al
r suits against the bank; that another sttor
d ney (Mr. Rice) came to the bar in Apri
a 1865; to this gentleman Hume applied
n know upon what terms he would under
Is take the business Of the bank. Thi
ii gentleman called at the bank and locke
K over the bills and notes and explanator
r comments prepared by Hume on the MAJ
N oi, and was rpuuRsted 10 mt has PROPOSE