Love v. Peel , 79 Ark. 366 ( 1906 )

Battle, J.

Overton Love, Betsy Colbert, and Eula Myers belong to and are a part of the tribe of Chickasaw Indians, and reside in the Chickasaw Nation, Indian Territory, and Betsy Colbert is the widow, and Eula Myers is the only surviving child and heir, of Holmes Colbert, deceased.

On the 24th day of October, 1867, the Legislature of the Chickasaw Nation passed an act appointing Holmes Colbert commissioner for and in behalf of the Chickasaw Nation to collect certain claims and demands of the Nation against the United States, arising under the treaties of 1832 and 1834 between the United States and the Chickasaws, allowing him a fee of .twenty-five per cent, upon whatever amount he may recover in full satisfaction for his services, and authorizing him to employ at his own expense whatever additional counsel, aid, or assistance that may be necessary to enable him to collect such demands and claims. Holmes Colbert accepted the appointment, and entered upon the discharge of the duties of the office, and so continued until the 24th day of March, 1872, when he died.

On the 8th day of May, 1872, the Legislature of the Chickasaw Nation passed another act authorizing and requiring the Governor of the Nation to appoint some competent person commissioner to fill the vacancy caused by the death of Colbert, to make all necessary settlements, to carry out contracts made by Colbert “with his attorneys at Washington, as originally agreed upon by him, and no further, to settle and pay over all moneys arising under said contract to his widow, or to the administrator” of his estate; and, “upon being notified of the final adjustment of said claims,” to “proceed to Washington and receive all funds that may have been awarded by the Government under said contract, and proceed at once to disburse the same according to the original agreement of said H. Colbert, and to settle with and pay over all moneys due to his widow or to the administrator of the said H. Colbert’s estate.”

On the 30th day of June, 1893, Overton Love, acting for himself, Betsy Colbert and Eula Myers, entered into the following contract with Samuel W. Peel:

“Whereas, the Chickasaw Nation of Indians has a claim against the United States for arrears of interest at five per cent, on the sum of $240,164, or about that sum, which sums were erroneously dropped from the books of the Treasurer of the United States many years ago and restored by the award of the Plonorable Secretary of the Interior, as provided by the fourth article of the treaty between the United States and the said Nation of Indians in the year 1852, which claim for interest now amounts to about $550,000.

“And, whereas, the said Chickasaw Nation many years ago employed and appointed one Holmes Colbert to collect said claim, with interest thereon, agreeing to pay him for his services a sum equal to 25 per cent, of the amount recovered, and, whereas, the sáid Holmes Colbert departed this life many years ago, and before any part of said claim was collected, leaving his widow and one daughter his sole heirs. And, whereas, said widow, daughter, has substituted Overton Love of the Chickasaw Nation to prosecute • said claim for interest (the principal having been paid).

“Now, therefore, I, Overton Love, of the Chickasaw Nation, do hereby employ Samuel Peel of the town of Bentonville, Arkansas, as the attorney in the case to prosecute said claim for interest, either in the courts, before Congress, or any department of Government, or any commission of the Government, and for his services I agree to páy him the sum of $30,000 out of the 25 per cent, of said claim; if not but only a portion of said claim is recovered, then in proportion or at the rate to which $30,000 bears to the whole amount of said claim, the said Peel agreeing to give said claim all needed attention. Made and executed in duplicate at Sherman, in the State of Texas, on this the 20th day of June, 1893.

[Signed] “Overton Love.”

The following receipt was appended to the contract: “Received from Overton Love as a retainer in the above case $2,500, June 30, 1893, to be deducted out of my fee.

[Signed] ' “S. W. Peel.”

Peel undertook to perform his part of this contract, and so continued for about one year.

On the 26th day of September, 1894, the Legislature of the Chickasaw Nation passed an act, which was approved by the Governor on the day following, and which authorized the Governor of the Nation to contract with and employ Samuel W. Peel, an attorney at law, to collect interest on said claims against the United States, the principal having been paid, and to pay him for his services ten per cent, upon whatever amount he may “secure;” and repealed all acts and parts of acts in conflict with the last act.

On the 26th day of September, 1894, the Governor of the Chickasaw Nation entered into a contract with Peel in the manner provided by the act of September 24, 1894. It was stipulated in the contract that it should continue for six years from date; and it was executed and approved in the manner provided by section 2103 of the Revised Statutes of the United States.

Under the latter contract Peel recovered $557,189.43, of which $55,718.94 was paid to him for his services, and the remainder was paid to the Chickasaw Nation.

Overton Love, Betsy Colbert and Eula Myers, alleging that the services rendered by Peel to the Chickasaw Nation were performed by him under his contract with Love, and that he received of the sum recovered $55,852.05, and that Love paid him $5,500 on the contract Love made with him, making in the aggregate $61,352.05 received by him, of which he is only entitled to $12,008.19 leaving $49,343.86 to which he was not entitled, brought suit in the Benton Chancery Court against Samuel W. Peel, to recover the $49,343.86, alleging that it belonged to them.

The defendant answered, and denied that the services rendered by him to the Chickasaw Nation were performed under the contract with Love; that he received of the amount recovered $55,852.05, and that Love paid him on contract with him $5,500; and alleged that his services were performed under the contract he made with the Governor of the Chickasaw Nation on the 26th day of September, 1894; that he received of the sum recovered by him $55,718.94, and that out of this fee collected by him he paid to counsel employed by him to assist him and for necessary expenses for a period of five years, which he devoted to the performance of his contract, about $25,000; and that the amount paid on the contract of Love with him was $2,500, and that for about one year thereafter he “devoted his professional services to the prosecution of said claim (the claim he was employed to collect) in good faith under said contract, and expended for traveling, hotel bills, office rent, etc., at least $1,500 when he discovered that the contract of plaintiff for the prosecution and collection of said claim was invalid because it was not executed and approved in the manner provided by section 2x03 of the Revised Statutes of the United States; that the same was not lecognized by the Government of the United States nor by the Chickasaw Nation; that nothing could be collected for said Chickasaw Nation or for the members thereof under the same, nor attorney’s fees could be collected for the prosecution of the same;” and that his professional services rendered under the contract with Love were worth more than $1,000.

Defendant pleaded other defenses in bar of plaintiff’s suit.

The chancery court dismissed the complaint of plaintiffs for want of equity.

The relation of Holmes Colbert to the Chickasaw Nation was of a very high trust and confidence, and his appointment of commissioner to collect the claims of the Chickasaw Nation against the United States was presumably induced by a reliance on his skill, learning, ability, integrity, judgment-and discretion. When he died, the duty and right to perform his contract with his client did not devolve upon his executors, administrators, or heirs; and they could not lawfully employ any one to perform the same. Plaintiff’s contract with Peel, by which they sought to do so, was without authority and of no force or effect.

Before this contract was made, on the 8th of May, 1872, the Legislature of the Chickasaw Nation by an act authorized and required the Governor of that Nation “to appoint some competent person as commissioner to fill the vacancy caused b)r the death of Holmes Colbert, to take charge of and to carry out the pro-gramme begun and commenced by the said H. Colbert without alteration or amendment; to make all necessary settlements, to carry out contracts made by the said H. Colbert with attorneys at Washington, as originally agreed upon by him;’ and to pay over all moneys due to his widow or administrator, if any, by reason of services already performed. This was a denial to plaintiffs of the right to make such contracts as that undertaken by them. The Chickasaw Nation had the right to employ one or more attorneys to collect its claims. The fact that it had one, if it had, did not deprive it of the right to employ another. The contract made by its Governor, by authority of its act, with Peel, on the 26th day of September, 1894, whether it employed him as sole or additional counsel, was a valid contract. His services were rendered under that contract, and he is entitled to the fee stipulated.

The weight of evidence adduced in the hearing of this cause shows that Love paid Peel on the contract he made with him $2,500. Peel, in an effort to perform this contract, spent divers sums of money, amounting to $1,500, and performed professional services worth as much as $1,000. It was not his fault that the object of the contract was not accomplished. These expenditures were made and services were performed virtually at the request of Love and under his directions; and Peel should not bear the losses.

Opinion delivered July 23, 1906.

Decree affirmed.