Maxey v. Besser ( 1876 )

Roberts, Chief Justice.

Besser, as trustee, was required by the order of his appointment to pay over the money to Mrs. Frances C. Momand, and to take her receipt for the same. Maxey & Leigh, by their receipt, acknowledged the receipt of the money, and undertook to do both of those things which he (Besser) was hound to do, to wit, to pay to her the money and to take her receipt for the same. Upon their refusal to pay her the whole of the money, Besser paid it to her himself, taking her receipt for the same, as he was required to do by the order of the court.

Upon this state of case Besser brought his action against Maxey & Leigh to recover back the money he had deposited with them.

The defense set up by them was that they were entitled to retain one hundred dollars of the money as a reasonable fee as attorneys in attending to the suit of divorce, in which, upon a division of property between her and her husband, this money had been realized on a sale by Besser, as a trustee appointed by the court; that the money being in their hands, they had a lien upon the same to the extent of their said fee, and that they had tendered the balance of said money to her and to Besser, and were ready to pay the same.

The only real difference between the parties was one of law arising upon the facts, which involved the question of the right of Maxey & Leigh to retain one hundred dollars, which was shown to be a reasonable fee for their services in the divorce suit.

The jury being waived and cause submitted to the court, a judgment was rendered in favor of Besser for the full amount of money that he had deposited with Maxey & Leigh, with interest thereon, from which they have appealed to this court.

The judgment of the court is correct, because as shown by their receipt Maxey & Leigh became the agents of Besser to pay over the money to her and to get her receipt for the same in pursuance of the order under which he was acting, of which, it may be presumed, they had full notice, having been her attorneys in the suit in which the order was made. Nothing less than her receipt, executed by her or by some one having authority to give a receipt for her in her name, would serve Besser as a proper voucher in his report to the court accounting for the discharge of his duty under the trust confided to and assumed by him, sanctioned by his oath and bond, and by the penalties consequent upon a non-compliance with the orders of the court as receiver and trastee. He did not place the money in their hands as her attorneys as a payment thereof to her, nor did they so receive it. Had such been the case they would have given him a receipt in her name, or expressly as her attorneys, in such manner as to have made it, on its face, tantamount to a receipt in her name. It is not necessary to consider what would have been their rights if they had so received and receipted for the money, and Besser had so paid it to them and accepted such a receipt from them, for that is not the case made here by the pleadings and evidence. Besser was the agent of the court to .carry out its decree, and unless he had gratuitously assumed it, he should not be placed in the position of litigating with Maxey & Leigh their right to and the amount of their fee, she not being a party to the suit settling the amount of the fee; and then afterwards, if she was dissatisfied with the allowance made to them, of litigating with her, in a proceeding instituted by her against him, their right to retain the money, and that it was a reasonable fee so retained, which would have been his position if this suit had been adjudged against him.

The right of an attorney to receive and receipt for the money of his client, paid to him as attorney in the ordinary course of collection, and his right to retain his fee in such, case, is well established. In such a case the money becomes his client’s money the moment he receives it as attorney. It has reached its destination legally, and if lost it is the client’s loss, or if a dispute arises between the client and and attorney as to the right of the fee or the amount of it, they are the proper parties to litigate such matters. But in the case before us the money had not reached its destination, and if it had been lost in the hands of Maxey & Leigh, it would have been the loss of Besser and not that of Mrs. Momand, who had not received and receipted for it. And, therefore, when they failed to do what he was bound to do, which they had undertaken to do for him, he paid the money to her, and properly brought this suit to recover hack his money in their hands. The judgment is affirmed.

Affirmed.