Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-21
LEGAL.
Decisions of the supreme Court Of
Tennessee. Rf Nashville. Deeember
Term, 1857.

hE1UhEs
decisions of The supreme Court Of
Tennessee. Rf Nashville. December
Term, 1857.
Reported for the Union ara Dispatch, by S. J.
Henderson. Attorney at Law.
The PlaDtors' Bank ofTennessee and d. Weay-
er. ~. }. @. Hornberger, W. J.. Humeand 9TH
ers, and
j. G. Hornberger d. Planters Bank Of Tennes-
see and others.
CONCLUDED.
In the case now under consideration the
defendant in the original bin was, and had
been, the counselor aud attorney Of the
bank, and at the time he was so acting was
treating with the bank for another and
much larger professional engagement The
contract as made between him and the
bank, through the medium Of its principal
officer, the cashier, and all the terms pro-
posed were reduced TO writing and enclosed
in communications. The real client was
the corporation, and il was the duty Of the
attorney to guard and protect this client
even as against its cashier or other officer,
and see that IL did not suffer by an i'm
proyident contract made by such officer,
not only with third persons, but with him
self. ae .....rrs
The rateof per ceutage agreed 10 he paid
the attorney, seems from the letter of the
10Th of April, 1865, land which letter, by
common consent, is presented TO the court
as containing in a tangible form more
Of the contract than any other)
to be based upon " litigated and unlitiga-
ted" cases Now, upon This contract there
was passed over TO the hands Of the attorney
about 100000 of bills, notes, etc, with
and without indorsers, who we're also,
where it was necessary, TO be proceeded
against az well as the principal Ina large
number Of cases all The parties to this pa
per were insolvent In other instances the
paper was secured by collaterals, and these
also went into the hands of the attorney,
and is included in the above sum.
One Of the differences which arises upon
this contract may be thus stated Suppose
the attorney cues the principal on the note
in one snit, and the suit is litigated, but he
obtains the judgment, but can procure no
satisfaction of the execution and is allowed
his commission Of eight per cent on the
amount, and he then deems il necessary
20 sue the first indoIser, but has
the same result, and is allowed the
same commission Of per cent. for this
service; he finally sues the second and
third indorsers, each in separate actions
and with like success az before Here we
have allowed the attorney % per cent. of
the whole amount, and no practical bene-
fit has been achieved. Now suppose one
or more Of these parties 60 appeal 10 the
Supreme Court and il is here litigated,
here is another allowance 10 the attorney
under the contract, of 4 per cent on each
appeal; or suppose after the judgment at
law against one or more he deems 10 best,
in order 10 procure satisfaction, TO file one
OF more bills against the respective parties
in a court of equity TO set aside convey
ances for fraud here again in each case he
would be entitled TO claim s per cent, and
the same result is obtained when we apply
the terms of the contract 20 the paper Sc
cured by colaterals. Now this would be
the practical result Of the contract
if it be applied as contended for,
but when we weave into this, the schedule,
with its complications and inyolvements,
as IL is commended should be done, and al
low per cent for surCtyships and the other
items of charges allowed by it, and then
think of the whole being paid in advance,
il il were possible TO know what sum the
contract would work outin favor of the at
torney beforehand, the transaction becomes
appalling, and the geometrical proportions
Of increase Of the fees astonishing. IL
such had been the full, clear and definite
understanding of the contract between the
officers Of the bank and the attorney, IL
would not be allowed 10 stand one moment
a. against the bank in any court Of equity.
The character of the gentlemen engaged
in this transaction forbid that il should
be so interpreted, as well as their re-
lations 10 the corporations, each its
agent for many years, and yet such
can be its practical workings and
result. We can readily suppose that
the officer of the bank by whom this con.
tract was made, by not making the proper
distinction between "cases and claims
which il was the duty of the attorney TO
point out could have believed that the
contract contemplated 90 allow eight per
cent. on all litgated claims put into the
hands of the attorney, and If the litigation
was brought 10 this court four per cent. adj
ditional, making twelve per cent. upon
all litigated claims, and four or more upon
all not htigated aud even at this rate, the
contract would have been highly beneficial
10 the attorney, and could not, under any
circumstances, have paid him less than
S25, 600 or $50, 600, and as the claims all
came from one source pariook of a COM
mon character, the litigation involved in
one case would have solved the difficult legal
questions Of many Of the others. But the
grand result attained upon almos, any con
struction Of this contract as IL stands lit
erallv, being at the least, and necessarily,
S25. 600 OF $4,000, with power given by il
10 the attorney 10 swell IL to $4,000 or
more at discretion, by reason of the eases"
he might choose 10 hring-all coming
from one client-and which, in the course
of any reasonable and fair progress in the
litigation, would end in two or three
wears, induce us 20 apply The striclest rules |
that attain in the practice of the courts Of
equity betveen attorney and client To |
cav nothing of the agreement AZ the time |
of making the schedule, that defendant
alone should be permitted 20 treat on other |
terms ior the business OF the hank, aud the |
application of the obligations of the sched- |
uie 10 Rice, at the time he was treating |
for this business as a competitor, OF which |
the hank was uninlormed at the time the |
contract was closed, we think there IL |
sufficient In the contract itself. and Ia its |
practical workings upon items, and eases"
Obligated and unlitigated," with the reser-
walton Of power in the hands Of the attor-
ney TO increase his remuneration 10 an ex-
orhitant demand, and 10 execute the con- |
tract at his own hands, by has liens and |
right Of retention, 10 set iti aside without /
inouiring for fraud, actual or eonstruc-
live either in the manner by which /
IL vas attained, or the manner in which
il has been executed Tins FAR, but &C
quitting all parties Of all character of
fraud. We think the contract Is ambiguous,
indefinite in lite consequences TO The client,
susceptible Of constructions that would
lead 10 uncomfortable advantages and
ruinous consequences, and the differences
and disagreements were apparent, and 10
which il has led. springs necessarily and le-
ultimately from the contract t;self, and must
entail disaster upon the corporation If 1t Is
permitted 20 be executed. We think the
recovery ofthe attorney should be sealed and