Knut v. Nutt , 83 Miss. 365 ( 1903 )

Qaxhoon, J.,

delivered the opinion of the court.

Section 3477, Rey. St. IT. S. (TJ. S. Oomp. St., 1901, p. 2320), reads as follows (the italics being ours) : “All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all poivers of attorneys, orders or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuance of a warrant for the payment thereof.” Appellant Knut petitioned the chancery court to cause John K. Nutt, the present administrator of the estate of Haller Nutt, deceased, to pay him 33 1-3 per cent of $89,993,83, recently received by this administrator from the United States government, and his contingent fee for services as attorney at law under a written contract, with which he is in privity, as assignee of it, made between one Denver and Julia A. Nutt, then executrix of Haller Nutt, on May 18, 1874. In an amended petition he asks that, if he be not entitled under the contract, he be allowed $30,000 as the reasonable value of his services. It is not to be disputed that, if Denver could have recovered, Knut can recover, this being the only contract. Mr. Knut exhibits with his petition two papers, each dated May 18, 1874, and each signed by the .executrix. One puts in Denver’s charge the claim of about $1,000,000, and says: “To prosecute the same before any of the courts of the United States, and upon appeal to the supreme court of the United States’, or before any of the departments of the government, or before the congress of the United States, or before any officer, or commission or convention specially authorized to take cognizance of said claim, or through any diplomatic negotiations as may he deemed hest by him for the interests of the party of the second park” (the executrix). (The italics are ours.) This paper then proceeds as follows (the italics being ours) : “The party of the second part (the executrix) agrees to pay the party of the first part a sum equal to 33 1-3 per cent of the amount which may be allowed on said claim, the payment of which is hereby made a lien upon said claim and upon any draft, money, or evidence of indebtedness which may be paid or issued thereon.” The other paper, signed by the executrix on the same day (May 18, 1874), is a power of attorney, irrevocable, and, in so far as pertinent, is as follows (the italics being ours) : “For me and in my name, place and stead, to prosecute a certain claim,” etc., “before any of the courts of the United States, and upon appeal to the supreme court of the United States, or before any departments of the government, or before the congress of the United States, and upon appeal to the supreme court of the United States, or before any department of the government, or before any officer, or commission or convention specially authorized to take cognizance of said claim, or through any diplomatic negotiations, and to collect the same . . . and to receipt and sign all vouchers and bonds of indemnity or appeal, and to endorse all drafts and vouchers in my name ” etc. This latter paper is attested by two witnesses, but the execution of both was about twenty-five years before, and was not after the ascertainment and allowance of the claim and issuance of the warrant, as the statute requires, and so the power of attorney is void. However, it does not appear that it was ever acted on, and the money was collected directly by the administrator. But because the power of attorney was void, it does not therefore follow that the contract in the first paper referred to, for the fee, was also void. The two are separable, and the one may stand while the other falls.

The first question for consideration is whether the contract is void on its face. Yery clearly it is not, unless some special significance be attached to the words, “or through any diplomatic negotiations as may be deemed by him best for the interests of the party of the second part.” What these words mean, no one connected with this litigation as counsel seems to know. Certainly this court does not know, but it cannot construe them to convey an illegal meaning. They may mean the mere diplomatic tact of courteous manner and bearing in dealing with objections in the dispositions of items of the claim, which would be the lawyer s duty. They may mean divers things, proper and improper, and so the meaning must be attached to them, on their face, which would be proper. “When a contract is capable of two constructions, the one making it valid and the other void, it is clear law the first ought to be adopted.” 3 Am. & Eng. Enc. Law (1st ed.), p. 869, note; Clay v. Allen, 63 Miss., 426; Merrill v. Melchior, 30 Miss., 516; Wilkins v. Riley, 47 Miss., 313. This question is therefore settled on general common law principles, and by the express adjudication of our own courts. So we conclude, on the face of tbe contract, that the court below erred in so much of the final decree as pronounces it void as “violative of the United States statute laws.”

The validity of this contract is in no way disturbed by the case of Owens v. Wilkinson 30 Wash. Law Rep., p. 436. This case showed an agreement that the counsel should have an “interest in said claim equal to one-half of the total amount received at the date of the settlement of said claim by the accounting officers of the treasury,” which is requested “to be paid to my said attorney.” That contract was the assignment of an interest in the claim, in direct contravention of the statute. In the case now before us the agreement is to pay counsel “a sum equal to 33 1-3 . per cent of the amount which may be allowed on said claim.” The' difference between “an interest in” and a sum “equal to” seems a thin distinction at first glance, but, when the reason for and language of the statute are considered, it becomes broad and obvious. The government had no intent to interfere with the free transfer of interests in the affairs of men, except in cases where they interfered with the convenient dispatch of its own business. Its disbursing officers had been harrassed by countless notices not to pay, and great numbers of writs of injunctions against paying, 'claimants, by parties claiming to be assignees of all or part of the money in the treasury for disbursements on private appropriations by congress. So it forbids “all transfers and assignments” of any claim, “or any part or share thereof,” or “interest therein,” and all “powers of attorney,” etc., for “receiving payment, unless made after the issuance of the warrant for the payment thereof.” It determined that it would deal with the original claimant only, and have easy bookkeeping. The distinction is aptly and well stated in the opinion in the case of Owens v. Wilkinson, above referred to, in the words on page 440 as follows: “For the distinction, though subtile, is well established — the one conveying an interest in the fund to be recovered; the other being merely a personal obligation, the extent of which is to be measured by the amount of recovery.” Appellees here are not aided by Trist v. Child, 21 Wall., 441, 22 L. Ed., 623. There the attorney filed Ms complaint in equity to enjoin tbe claimant from withdrawing his part of the money from the treasury. His bill is based on a contract that he “should receive 25 per cent of whatever sum congress might allow;” and the attorney got payment suspended by the disbursing officers by injunction, and the money was in the treasury when the ease was decided by the supreme court. The court held that the agreement carried on its face the assignment of an interest in the fund, in giving the attorney 25 per cent of whatever sum congress might allow, and this was enough to decide the case against the attorney. But the court further found that the “contract,” which is not set out in the record, “was, on the part of Child, to procure by lobby service, if possible, the passage of a bill providing for the payment of the claim.” In another part of the opinion it said: “The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate,” etc. In every case cited in that opinion the fact was that the original contract was in violation of the statute. The opinion, in treating of Child’s claim, of a lien, though none was provided for in the contract, disposes of it by very properly holding that the contract, being illegal, could not support a lien, and says: “The bill proceeds upon the grounds of the validity of the original contract, and a consequent lien in favor of the complainant upon the fund appropriated.” It then shows the contract invalid, which, of course, destroyed any claim of lien as attorney in carrying it out, and then decides that the remedy, if any, was not in equity to enforce a lien, but at law for breach of the contract. There is no parallelism between that case and this at bar. If there was, we should follow in the conclusions we arrive at in this opinion, the mass of later decisions of the United States supreme court and of our own appellate court.

The decree of the court below in the case before us cannot be sustained on the ground that appellant procured personal solicitations to be made to members of congress in behalf of the claim. Complainant testifies that he did not, and one of the defendants, who is interested, swears generally that he did. The complainant having exhibited a valid contract, and proved legitimate services, the burden of proof was on defendants to show corruption. But aside from this, it is certain that Mr. Calvin Nutt, the only witness for defendants, gives simply his opinion of what were improper personal solicitations, and in no instance states the facts of the colloquium in any interview with any senator or representative so as to enable a court to judge of its propriety. But suppose there were improprieties of this nature committed in carrying out the valid contract, is it therefore settled that complainant is to have none of the fruits? The government, having paid the money, has no concern in it; and, on the facts here, we do not think defendants should have it all, free from the obligation to complainant. Our own court is committed to this doctrine. Fewell v. Surety Co., 80 Miss., 791, 28 South., 755; Howe v. Jolly, 68 Miss., 324, 8 South., 513; Gary v. Jacobson, 55 Miss., 207, 30 Am. Rep., 514; Walker v. Jeffries, 45 Miss., 165; Gilliam v. Brown, 43 Miss., 659. See, also, Barry v. Capen, 151 Mass., 99, 23 N. E., 735, 6 L. R. A., 808, which last case seems directly in point. Nearly all, if not all, these authorities, and many others, are cited in the brief of counsel for appellant, to which the profession is referred.

Beversed, and decree here that Sargent P. Knut is entitled to his prayer for 33 1-3 per centum of the amount collected by the administrator ($89,993.83), in full for any advances made by him, and all services rendered, and the cause is remanded for account to be taken accordingly, and for order that any balance of this per cent unpaid he 'paid to him by the administrator. Costs of both courts to be taxed on appellees.

Beversed.