Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-12-30

and willing to settle with you fast you make colec
ton Of claim and pay your fees will be paid
par funds at the time And in relation to the appeal
in which you and others are on the bonds we
you previous letters If the bank you
previous 70 arrangements above referred to-
make it out and if Mr. Hume says II Is correct we va" pay
it. And in conclusion respectfully request you to
say whether you with the business of the bank on
these terms not respectfully decline any inrther con-
troversy this subject"
In reply the 9th Of February, 1865 Mr. Horn6erger
says nooses Of Horurger and House,
and also his account previous to tho asks
that the money be deposited in the Third bs1k az
Nashville, and certificate ncosed Gays further, will
merely that do agree with in your consruc
your letter wpud be champertous and this was the iae
and known to the court bar gant every suit that the
BANK has court both law and equity attachments and in
functions, and all would be dismissed the bank taxed With
the costs and would be stricken from Che roll, etc., etc
coneudss 81 will merely state that you are surely mista
ken in Of your positions asserted in your letter
cannot agree in single of them. We had better,
therefore, agree TO disagree and let the courts settle all mat
tiers between us. see no other alternative"
collected h Planters Bank mons 90 and in green
backs, si,5i6s5, making sum total OF 81, 1880
Here ensues correspondence relative &c
and Misunderstanding of the respective parties to the
contract and this kept mp until May 18th, 1866, when
the in the correspondence that
Hornberger that be had made
900 etc. passed him by bank inclusive of in
rest and damages in these notes and that the fees are
bRcj apes the pes ccnase, S6S s63i3; this
trau about SeOo being the per oentage on the second
action the paper to that amount and for defending
on the 9Th Of June 1866 the bank offered nent SIS
600 omPromise and proposed to relieve him of all obi
cations upon bonds which was refused.
The answer and cross bill respon
O. n graopSaeF S. that he had pd to tie
bank Planters Bank sI09927o and tho balance
nd that debtors aud parties had paid TO Weaver under the
orders Of respondent about $40 6 So making in all collect
and In which he instrumental in Collecting $780,
2s7 60, sinee the 10Th Of May, 1866.
The cross bin prays specific peroEhaGe Of the contract
and that all liens be enforced also general relief
In TO the cross h Weaver says that at no time
understood that the schedule OF he CarksVe
bar agreed upon adopted, in whole or In part as
portion of the contract but the early "a the nege
feature Of which required fees to he pa n advaaee as by
that rule the lawyer employed might die, and fat TO
and interest that it was desirable TO put
whole in the hands Of lawyer and him the commits
berger stated that exempted from the operations OF
the schedule far the bank concerned aud at
perfect liberty with the bank Independent of that
This answer states that the letter of the 10th of April
1866 forms the the made, and that the
accepted and understood agreement 70 col
tEe time Of the collection that this proposition regard
ed high but the bank mainly induced to accept
because lawyer the bar permitted to treat for the
busnss any independent schedule that the
bank informed by Hornberger himself, and subse
qucnty by Mr. Hume, when he written to to the
answer further states that had recently
Clarkve bar did agree with Mr Hume accept the bust
commission of five cent on collections but
such member afterwards believing that he too was bound By
the schedule, although he had settled in GAINESVILLE since
the had adopted had withdrawn his PROPOSAL
that it believed that the Commissions hch Hornberger
would receive would amount S 600 after Hume sent
IN which belief the officers Of the bank were py
the Of Hornbeger and trusting to these the
notes ordered to be handed to Hornbege that 1t Aad
after the services had been rendered that the letter written
to Hume August 1861 related to the payment of past fees
Hornberger and House. and did direct Hume pay
fees where the claims handed OUT but o debts
that the subsequent in regard to the pay
ment Of fees shaped and worded by Horn9erge 10y
his present necessities in explanation OF his
from demand for money due him TO sH advance to relieve
his necessities time did he understand the
reference made by Hornbeger to the schedule on ~ point
as referring to other than fees that him the old
contract that these might be Construed with reference to
the time Of their payment to come under the schedn bQ
the under tho contract the schedule wholly
excluded from this, and that any agreement that he
(Weayer had made to settle his account re-
ferred alone the old account OF Hornberger House. the
1861 together with his commission under the new
contract SO far as he had collected the money tha ne
asked him what the amount Of the account and when
amout to $4,000 or $4,000 he (weaver expressed
dissent surprise and dsapprOyal This answer
attorney other specially given in the letter to
him. That than onehalf the claims are insolyent
that quite gated that different suits are brought
; ;t bp - be cSarsed with the per centage
That these of the contract were so different
charges unreasonable it was tnougn pest 20 dsove
the relation That the now, and at all times is ready
- All reasonable fees and release by the execution of
other indemnity bonds, said Hornberger anu al ohe
We ave quoted thus literally the peadugs in order
TO by what proposed and discarded
previous entering into contract finally the views OF
each party the time it entered into; also to allow
each party full benefit in his language of con-
structon OF the contract ana 10 appreciate the
and disagreements that arose under the same.
appears the record that at the time the schedule
adopted there were but four attorneys OF the
bar practong the others being in the South that subse
qUenty Of these went the BENCH and or more
employed had retained to defend any and al
suits against the bank that another attorney r kce)
Piled upon he would undertake the basi
Of the bank This gentleman called at the bank and
prepared by Hume the margin aud requested to put
his proposition in writing as l. wCnld be sent to
receive five per cent ali collections and three per cent
all judgments, from which money was realized, and
was delivered Hume unsealed,
after this proposition was given to Hume Mr.. Horn
berger and another msmber of the bar who had agreed
to the schedule, but who had been retained by the
debtors Of the bank called upon Mr. Rice and Hornber
ger told him that House had told him of the proposition
and Hornberger remarked that he negotiating foi
the business Of the bank, and that he wished witness tc
withdraw his propositions that there had been meet
ing of the bar sometime before and they had agreed e
charge certain fees set out in schedule, and that 1t haC
been agreed at the time that the business of the banh
should be excepted from the schedule in favor of hin
(Hornberger) and that he to have the exclusive
privilege Of proposing for that business terms outside
Of the schedule ard that member of the bar was n
liberty to make any proposition while he was negohat
ing for it, and seemed regard the action OF this attor
new as an unproeona interference. ThereupOn witness
and orubergor to the bank and withdrew the pro
| position before il had been forwarded to Weaver.
The original bill, in effect seeks to set aside the con
tract, and allow quantum meruit recovery The eros
bill seeks specified performance of the contract; and
! this latter the Chancellor decreed.
In announcing the conclusions of the court will no
discuss everay the various reasons and arguments tia
have been submitted at the bar-why, tho one hand
the should be recinded why, on the other
! should be specifically performed.
Let us ascertain what party is required to show in order
have contract resUinded and anDuled whth contract
sought enforced by his adversary As between pare
that are compos mentes fraud appearing hducary
existing, treating with each Other
and on equal terms between two judgments
be sufficient but the dsproportisn between TIE tn
thing consideration given so great as to becom
shocking common sense and very gross ue courts wo1
set aside OF actual fraud any more than 70
want Of capacity but because Of the bare s2usee OF th
transactions apparent that no court admin sterng asc
could conscientiousy permit It TO stand such nadequac
equivalent in Law to fraud or equivalent g ncsPaey an
effects the Now We alter the capaey oil IN
pareTedacng below the ordinary 50 that he descend
in quanu Of capacity towards me condition o. Inc 1901
lunache vigilance OF the court becomes aroused Us scruH
ny awakened and less inadeqascy Of price VIII induce It
give the r,ef recession cancellation The deeper IN
party has sunk towards mental ioecy me greater &c
comes and responsibilities Of the cour to relieve al
protect him. the greater vigilance is called upon to ex
ercise 70 this end so wien ne sha nave ae INTO
ncapacy the becomes pso acto void or 'odabe win
any Inquiry the terms Of the contract or the adequac
or uadeuuacy Of the consideration the rule ia regar
betEeen parties occupying hducay relation
looked to- true and slight inedequacy added TO
aducary character would be sufficient to order rS
cson as Che duciary relation draws nearer and the conf
dence rePosed increases adequacy and nadeqc
consideration dmniEes element Of Which the law vi
take hold to grant relief until finally these to have
confederation and there anore Sbs0Ge principle
law decisive and preremItory The relation Is such beWee
a. arties thai the law inerdcts trades Between then
Sb are the relations bEtWeen guardians wards luns
ana cce The principle is that the greater the cont
ee ne more couaiu the trust the moro absolute the d
rsosprs OF he one Marty and consequently easier
s h. 10 the other party TO acquire age the
sf law becomes aad the greater protection afford
~ densdeut uartv Whether the dependense fro
iehscifvsr fro necessary legal relation ~ hdaciaI
Sarsy h matters not the legal effects is the ans the onl
difference being in the Cause
This hrips ms 70 ration Of The reltou of atto
,ev AMI eBt and, = Is We have derived
Fsnd 5ecigies As vii az those Of courts, and
review decisions shows most eonel1sey that the
iston Il % III treat deeacy extremely hduci5ry In its cha
r,r ara be bo has strictly guarded against committing
breach OF il OF long practices has continual
cultivated the highest yiT.Hes Of hil nature
In the case Of Middleton wills, Bro P. G ~, II W
decided that established Tule IN courts OF equity IN
beTQnd fair TrofeEson