Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-03-23

conHfmed-Wno has uied no official bond
and has never qualified as such officer o
appointee, as provided By law of thi
State" california;.
maintains that his interest in this agenc,
is OF such a character that even the partie:
to it cannot, without his assent, annul il
and, fortiori, the Governor cannot sub
stitute himself for one of the CONTRACTING
palles. and arbitrarily revoke, yacate, ane
auuul the same.
First-The most important Question
| which arises in this case is, whether the
agency of Captain Mullan, granting It's va
lidity, can, under any circumstances, be
revoked without his consent, because It's
solution viii clear up some obscur;ties in
the further discussion of this employment
II his authority is coupled with an inter.
est, as he maintains in his brief, there will
be o necessity to inquire into the power OF
Governor Waterman in the premises. be.
cause, according to all the authorities, his
| agency cannot. in that event, be deter.
mined at the will of his principal, whoever
| that may be-
| Captain Mullan was authorized to collect
! the claims designated in the concurrent
resolutions mentioned, and to pay the
money TO the Governor, from whom be was
to receive certain per centum thereof as
his compensation.
| The contract was to give him part OF
the property to be recovered, as a contin-
gent fee for his services. Such contracts.
though condemned by the ancient law, are
not only sustained by the modern law of
| this country, but are of frequent occur
renee y Pomerov, Eq. Jur., Sec 9S6, note
2, Hoffman VS.. Vallejo, As Cal. 564).
1t is well settled by the decisions of the
Supreme Court of the United States that
| an agreement to pay contingent fee for
the preparation and advocacy of Just claims
before the Executive Departments of the
Government is not in violation of law or
public policy stanton VS. Embrey, 93 u.
s. 54S; Wright vs.. Tebbitts, 81 i'd 252).
Such contracts, then, being entitled to
Judicial respect, the question arises whether
they can be revoked at the pleasure of
| the principal. Does the fact that the agent
has an interest in the proceeds of the col
lection, or the proceeds of the sale, invest
him with irrevocable authority?
PROFESSIONALLY it would if the agent is
also the creditor of the principal, and this
| power is given to enable him to pay the
debt out of the proceeds. STORY on
Agency. 9th ed, Sec. AT; Traverse vs..
Crane, Is Cal 12)
| 1t is also held by the Supreme Court of
the United States that an agreement to
prosecute claim for portion of the pro-
| ceeds, with full power to compromise it, is
a power conferred, coupled with an inter
| est which is not revoked by the death of
the principal. (Jeffries VS.. Nut. Life ms.
Co. of n. Y, ITO U. S. 305.)
In Missouri VS.. Walker (125 U. s., 339),
the Jeffries case IS referred to, and it is init
mated that the clause giving the power to
compromise as the attorneys should please,
| thereby enabling them to establish the
claim, impaired an irrevocable quality to
their authority.
At first view it would seem that the
opinion of the Court in Wylie " Coke Us
How. 4l5) supports the irrevocableness of
contracts like the one under consideration.
Coke had been employed by Samuel Bald
| win, through his brother and agent John
Baldwin, to prosecute claim against the
Republic of Mexico for personal outrages
| and losses of property through the officers
OF that Government. He brought the mat
| ter to the notice of this Government and
urged indemnity. Finally, An act of Con-
gress was passed and Board of Commits
sioners authorized to examine and decide
such claims. Coke did everything that
was done in bringing the case before our
Government for indemnity. The fee for
his services was to be per cent OF the
claim recovered. The Commissioners al
| lowed the claim amounting to $75 5000.
The claimant, Baldwin, however, had
died before the CLAIM was pre-
sented TO the Commissioners. Wylie
took out letters of administration
on his estate, and though he did not en-
engaged as counsel by the widow, he al
| lowed him 10 take part in the preparation
and presentation of the case before the
Commission. subsequently an agent of
the widow came on from Mexico, bringing
a will of Baldwin, which appointed his
wife executrix. This agent dismissed Coke
as attorney in the case, and after this he
was not consulted by Wylie, and any serv-
ices subsequently rendered were voluntary.
1t was conteuded, on this statement of
| facts, that Coke had no right to the per
cent. commissions. The Court says:
The defendant [Wyliel seems to suppose that
as, on the death OF Samuel Baldwin, the agency
OF his brother ceased, the contract which had
been made by him was no longer in force . .
he had no power to annnl the contract, if made
bona fide by the complainant (Coxel and the
business had been faithfully prosecuted by him.
In another portion of the decision it is
said:
The evidence proves that the complainant
was to receive q contingent fee of five per
centum out of the fund awarded, whether
| money or script. This being the contract, it
constituted lien upon the funQ, whether IL
| should be money or script. The fund was looked
| TO, and not the personal responsibility of the
owner of the claim.
| 1t might be considered that this justihes
the conclusion that Coxe's authority was
considered by the Court as coupled with
| an interest and, therefore, not affected by
| the death of the claimant Baldwin. But a
| closer study of the language of the Court
| makes it apparest that it was admitted
ft.nt i u i
Court expressly contends that the admins
| traitor could have dispensed with the fur
I ther services of the complainant" lCoxe |
They held that he could not IAN null the
| contract which, in my opinion, simply
| means that he should not be deprived OF
| the fruit of his past efforts, though be could
| be removed from the position and pre-
vented from finishing his work. 1t is in
| line with those decisions which hold that
broker who has opened negotiations with
purchaser, without concluding a bargain
is entitled to proper proportion of the
agreed commissions if the party who en-
ployed him to sell concludes the bargain
himself. Martin VS.. Silliman, SO n Y
6l5; Story on Agency, 9th ed. Sec. 800, and
cases cited
/ Admitting, however that the doctrine OF
| Wylie VS.. Coke is in support of the irrevo-
| cability OF contracts of this character it is
nevertheless true that all the authorities
including late decisions of the same Court,
hold that contract to prosecute at his own
expense certain claims, or to make certain
collections or sales of property, and to
receive as compensation for his services
a certain rate of com missions on the
amounts collected or of the proceeds of the
sale, does not confer upon the agent a
power coupled with an interest in tae SUBJ
| ject of the contract, which makes the
contract of agency irrevocasle.
A leading case on this subject in this
country is Hartley's Appeal (5S Penn. St..
2l2.) There was an ordinary agency estab-
lished by letter of attorney to collect
moneys that might be due the principal
from the estate of her father. For their
services the attorneys were to have one
half of the net proceeds of what they
might recover for her. The Court, follow
ing the definition of an interest coupled
with power laid down by Chief Justice
Marshall in the leading case of Hunt VS.
Rousmanier's Administrators Is Wheat
174), says:
The plaintiffs in error claimed that this clause
rendered their power irrevocable by the princi
pal, under the idea that it was power coupled
with an interest. This was a mistake, as ali
the authorities show. To impart an irrevocablt
quality to power of attorney IN the absence o.
any express stipulation, and as the result O
legal principles alone, there must co-exist with
the power an interest In the thing or estate L
hfad nf Nr he