The Portland daily press., 1872-09-28
This Relations of Attorney and Client.
John WARE ". JOHN RAND.
ICorrespondence Portland Advertiser. I


Yesterday began the trial of the suit of John
Ware of Athens, against John Rand of Port
land, for the sum of $l705, alleged to have
been received by Rand for plaintiff and not ac-
counted for with interest from April II, 1871.
The defendant replied that the sum so retained
was no more than reasonable and just per-
centage for the collection of $40, 507. 80, and
was properly charged under the rules of Cum
berland Bar, of which he is a member. The
case has attracted a good deal of attention
here, and a brief rehearsal of the testimony will
be interesting even to unprofessonal readers.
Some time ago, when the bonds of the Pc
nobscot and Kennebec railroad were quoted at
SO to 35, Mr.. Ware, believing them to beegood
property to hold at that price, quietly bought
up an amount of these securities representing
at par $157 200, and waited patiently for them
to mature; meanwhile collecting the coupons
with great regularity and precision. In the
process of time, the Penobscot and Kennebec
railroad was absorbed by the Maine Central,
and in January 1870, the decision of the Su-
preme Court of the United States was promul-
gated to the effect that the legal tender act did
not relieve debtors from the obligation to pay
gold on contracts entered into prior to Febru-
ary, 1862 Mr.. Ware at once demand gold for
his coupons falling due on the first OF February
1870, and on the first of August following,
when the bonds matured, demanded gold for
the principal and the last coupon. These de-
mands the Maine Central declined to recognize,
taking the ground that the decision of the Su-
preme Court which had been carried by bare
majority, was unsound and would not stand,
and offering but not rendering payment in cur
rency.
Alter waiting about six months, Mr.. Ware
conceived the idea of invoking the aid of the
bankrupt'act, to compel the railroad company
to accede to his demand. After consultation
with Hon. Henry w. Paine of Boston, who ex-
pressed some doubts about the proceeding, Mr..
Ware came to Portland and instructed John
Rand, Esq, to file petition in due form. Mr..
Rand like Mr.. Paine, was doubtful whether q
railroad company could be considered traders in
the sense of the bankrupt act, and also whether
failure to pay bonds issued by another COM
pany would furnish grounds for proceedings in
bankruptcy. He undertook the case, however,
demanded and resolved 800 to be used in the
prosecution, and his junior partner commenced
the preparation of petition founded upon a
draft handed to Mr.. Ware by Mr.. Paine:
So much being settled Mr.. Rand informed
his cliant that Mr., Wm. E. Gould, cashier of
the First National Bank of Portland, had been
authorized by the Maine Central directors to
settle these claims, and proposed to see wheth-
er a satisfactory adjustment could not be OBJ
tanned by negotiation with him. 1t appears
that Mr.. Rand was then, as he is still, direct
or of and attorney for the First National Bank,
and was accordingly familiar with the written
and verbal instructions under which Mr.. Gould
was acting Mr.. Ware conserving, negotia-
tions were opened, and after considerable cor
mail and telegraph, on the part of both Gould
and Rand, it was finally agreed by the directors
to pay the coupons and principal of the bonds
in currency, and to give an obligation to pay
the difference between the currency and gold
value of the face of the bonds, with interest
from April II, 1871, on the LIST of September,
1872, unless the decision of the Supreme Court
should have been reversed prior to that time.
This basis of adjustment was accepted by Mr..
Ware, and the proceedings in bankruptcy,
ton of the petition, were now definitely post
poned, but some discussion followed as to the
Interpretation of the agreement. Mr.. Ware
claimed, and the company finally allowed, in
terest ON the coupons of Feb. L 1870, and on
the principal and coupons falling due Aug. 1,
1870, to the date of the settlement, April II,
1871. Mr.. Ware also claimed the exceptional
gold rate of q 49, on the LIST of August, 1870,
but afterward agreed to the ruling rate during
the year of II per cent.
So far, both parties agree in their statement
of facts. The plaintiff further swears that,
seeing the company had only agreed to pay II
per cent. upon the face of the bonds, with in
terest from April H. 1871 he directed Rand to
use his best efforts to secure either an allow
ance ofinterest from the date of maturity, Aug.
l, 1870, or an allowance of IL per cent. also up
on the unpaid coupons, amounting to nearly
81, 200. This allowance, of about 500, he
wished to have included either in the agree
ment or in the cash payment. Mr.. Rand says
no snch claims were made. t
Mr. Ware also says that, in answer to ques-
ton, Rand expressed the opinion that the bank
would pay per cent for the money if deposit
ed on call, but promised to get five, and took
tn, bonds from his Office across the street to
the bank with this understanding. EsGL
AT the bank, Mr. Rand says he received
from the cashier $170, 507 so in currency, and
told Mr. Gould that his client wanted to make
a deposit on call at percent, but per cent.
would be a fair rate. He also remarked that
his clients expenses would be heavy, his own
commission under the bar rules amounting to
some $780, and expressed the opinion that the
company ought to- contribute $500 to relieve
him. Mr.. Gould objected that this was not
contemplated in the agreement, but yielded on
being reminded that it was entirely within the
scope of his discretion. Mr. Rand then received
from the cashier certificate of deposit to the
credit of John Ware for $16S, 900, and $2507. 90
in cash.
On returning to his office, Mr. Rand deliver
ed to Ware the certificate of deposit and $500
cash, as he says, or $1,000 cash as plaintiff says.
In answer to an enquiry concerning the rest of
the money, he explained that under the bar
rules he had charged per cent. for collecting
$40, 5O7. so, or $1705 commission, and had re-
tanned enough to make up this amount with
the 800 advanced in the outset Rand also
says he told Mr.. Ware that he had made the
company pay $500 more than was due underline
agreement, while Ware swears he said the $500
was the best he could do towards securing the
500 claimed for interest on gold premium from
Aug. l, 1870, to April II, 1871. Mr.. Ware OBJ
jected to this settlement under bar rules, of
which he had never heard and which seemed to
him unreasonable, and finally demanded and
took receipt for S1705, the amount retained by
Rand.
The action for the recovery of this sum came
up for trial at the March term of the present
year, but was continued on account of the dis
tnrbance about the county seat for Somerset
The counsel engaged in the trial this term were
Joseph Baker, Esq, of Augusta, and Hon. d.
ID. Stewart of st, Adams, and Rand pro Sc for
the defence. II
The testimony of the parties to the suit has
been given. The deposition of Mr.. Gould was
by the defendant, confirming his
account of his transactions at the bank. Dep
Osition from Judge Howard, Hon. Bion Brad
bury and Hon. Nathan Webb, and oral testimo-
ny from Hon. j. H. Drummond and s. c.
Strout, Esq, were offered to show the usage of
the Cumberland bar in the matter of cOllec-
lions. The evidence agreed that the bar rules
are the basis of all charges, and that the rule on
tne subject provides for charge of per cent
On the first 800, IL per cent. on the next
5000, and per cent. on all moneys collected
over $1,000.
The defendants counsel claimed that his ser
vices in the case amounted to a collection of the
whole amount and that under the rule he was
entitled to charge $3.50 more for the collec-
ton, besides charging for his advice in relation
70 tne bankruptcy proceedings.
The plaintiffs counsel deny that the services
Of the defendant amounted to a collection, there
being no controversy about the payment of the
principal and coupons in currency. As to the
agreement to pay II per cent. for the difference
between currency and gold, this might have led
% the collection of some $4,000, but as the de-
,ison of the Supreme Court was reversed be-
ore the LIST of September, 1871, the agreement
allied, and no collection was made Hereunder
Whatever defendants services were reasonably
worth, plaintiff is willing to pay, but claims
hat Rand withheld material facts which would
rave enabled him to secure more favorable
ettlement, and in fact appeared to be acting
Iuite as much for the bank and the railroad
company as for his client.
The jury returned a verdict for the plaintiff
or the gross sum of STA. n
Religions Tnta1li&nuep