Allard v. Lamirande , 29 Wis. 502 ( 1872 )

LyoN, J.

This action is to recover certain land in the county of Brown. The complaint is in the usual form, and the answer thereto is a general denial. The verdict and judgment in the circuit court were for the plaintiff, and the defendant appeals from the judgment, and seeks to reverse it on three grounds.

I. He claims that a champertons agreement between the plaintiffs and his attorneys relating to the compensation of the latter for their services in the action, was proved on the trial, and that the circuit court erred in denying the motion of the defendant to dismiss the action because of such agreement

H. The court gave the following instruction to the jury: “ If the jury are satisfied from the evidence that the defendant, Lamirande, testified falsely in any respect on the trial of this cause, they may reject all his testimony; it being an established rule of evidence that witnesses proven to be false in one thing may be presumed to be false in all things. ” This instruction, to which there was a general objection, is claimed to be erroneous because the word “ knowingly ” was not inserted therein as a qualification. That is to say, it is contended that the instruction should have been, that “ if the jury are satisfied from the evidence that the defendant, Lamirande, knowingly testified falsely, etc., and that the omission of such qualifying word therefrom renders the instruction erroneous.

III. It is claimed that there Is a fatal defect in the form of the verdict, which is as follows; “ Now come the jury in this cause, and severally say on their oaths that they find for the plaintiff.”

We will consider these alleged errors in their order.

I. The common law in regard to champerty and mainten-anee, witb tbe qualifications established by' the 'modem authorities, is in force in this state. Barker v. Barker, 14 Wis., 131; Miller v. Larson,, 19 id., 463; Martin v. Veeder, 20, id., 466; Stearns v. Felker, 28 id., 594. In the first of these cases it was said, that when it shall be made to appear to the court in which, an action is pending that it is prosecuted pursuant to a cham-pertous agreement, the court should refuse longer to entertain such action. This is doubtless a correct statement of the law on the subject If, therefore, it was proved that the attorneys were prosecuting this action pursuant to a champertous agreement with the plaintiff, the motion to dismiss should have been granted.

We are not left in-doubt as to the terms of the agreement between the plaintiff and his attorneys, upon which this claim of champerty is predicated. That agreement is in writing, was put into the case by the defendant on a motion for a new trial, and is set out in the bill of exceptions. There is nothing in the testimony given upon the trial which shows, or tends to show, that there was any other or different agreement under which the action was prosecuted. This written agreement is, simply, that the attorneys will conduct this action as attorneys, and perform all necessary services therein, until final judgment; for which services the plaintiff agreed to convey to them one-half of the land in controversy in the action. Is this agreement champer-tous? By champerty is meant “ a bargain with the plaintiff or defendant, campum partiré, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champerter is to carry on the party’s suit at his own expense.” 4 Bl. Com.. 135. It has been said that, where the attorney contracts in advance for a part of the property sued for as compensation for his services, he does, in a certain sense, by the.act of rendering the services, carry on-the suit at his own expense, in part at’least, although he has not contracted in terms to pay any portion of the expenses of the litigation. Cases are not wanting in the books' which so hold, and it has often been adjudged that contracts like that between the plaintiff and his. attorneys are champertous. On tbe other band, there are cases of equal authority which hold that an attorney may lawfully contract with his client for part of the property sued for as compensation for his services, provided he does not also agree to pay the expenses of the suit, or some portion thereof. We have carefully examined these conflicting decisions, but it will serve no useful purpose to comment upon them, at length. Many of them are cited and commented upon in the cases of Backus v. Byron, 4 Mich., 535, and Bayard v. McLane, 3 Har. (Del.), 139. See also McDonald v. Chicago and N. W. R. Co., 29 Iowa, 170. The later New York cases, cited in the brief of' counsel for the plaintiff, are supposed to be governed by a provision of the code of that state, not found in our present statutes, and are therefore not relied upon as authority. The same provision, however, was contained in our Code of 1856, (Laws of 1856, chap. 120, sec. 214), and under it the case of Ryan v. Martin, 16 Wis., 57, was decided.

In some of the other cases referred to, particularly that of Backus v. Byron, the decisions were controlled or influenced by statutory provisions. The statute of Michigan prohibited an attorney from buying, or being in any manner interested in buying any bond, promissory note, bill of exchange, book-debt or other thing in action, with the intent and for the purpose of bringing a suit thereon; and from advancing any money, etc., as an inducement or consideration for having placed in his hands any debt, etc., or thing in action'for collection. A violation of this law was made punishable by fine or imprisonment, or both, in the discretion of the court. In the case last cited, it is very pertinently asked, “ Can it be less an offense for an attorney to purchase land, with the avowed object and purpose of prosecuting a suit for its recovery? ” (P. 552.) We are not aware of the existence of any law of this kind upon our statute books applicable to attorneys, but we have such a law affecting justices of the peace and constables only. R. S., ch. 120, sec. 237.

In all of the agreements which have been held by this court to be champertous, there were express covenants or stipulations that the champerters should pay the expenses of the liti-gations ; and the court has never determined the character of an agreement like that under consideration. We are, therefore, at liberty to adopt and follow the line of decisions which seems to us to be in accordance with justice and sound reason.

Applying these tests to the numerous decisions on the subject, we do not hesitate to approve and follow those which hold that agreements between client and attorney like that under consideration, are hot champertous.

To hold otherwise would be to apply to such agreements the strictest rules of the old common law concerning champerty, when, as already stated, we have, in this state, only adopted the common law rules in a modified form, that is, with the qualifications established by the modern authorities. We have also seen that the modern authorities, or at least some (and, as we believe, the soundest) of them, so modify those rules as to relieve this contract from the taint of champerty.

The history of the application of the old common law rules concerning champerty and maintenance, will satisfy almost any person that those rules greatly needed to be qualified and restricted, either by judicial decisions or in some other manner equally as effectual. Eor illustrations, see 2 Bishop on Crim. Law, sec. 129. That an attorney may contract with his client for a fee in an action, contingent upon success, is not denied. Eor example, he may bring an action upon a note for the payment of five hundred dollars, and may make an agreement with his client, which will be legal and binding, that if he collects the note he shall receive a stipulated fee, say one hundred dollars, therefor, but that if he fails to collect it he shall have nothing for his services. Such an agreement is neither unlawful, immoral or disreputable. At least it is not necessarily so. Now suppose, that instead of being for a specified contingent fee, the contract is that the attorney shall receive for his services a certain per centage of the amount collected, or if, as in this case, the action Re to recover land, that Re shall Rave a share of the land recovered, -wherein would it differ in principle from the contract first supposed? We confess our inability to comprehend the difference between them.

It should be observed that whenever a contest arises between the client and his attorney concerning the compensation of the latter for his services, the courts will closely scrutinize their contracts relating to such compensation, and if any undue advantage has been taken by the attorney, which renders the contract inequitable and unjust to the client, it will not be enforced.

Upon the whole, we see no good reason founded on principles either of justice, public policy or professional propriety, for holding that the agreement between the plaintiff and his attorneys is champertous; although, under the authorities, it would be otherwise had the attorneys agreed to pay the expenses of the action.

II. Was the instruction, to which exception was taken, erroneous ? It is clear that the learned circuit judge intended to give the jury a correct application of the maxim, falsus in uno, falsus in omnibus ; and, conceding that he might have done so, with more precision by the use of the word, “ knowingly ” in the proper connection, we think that he substantially accomplished such intention. Every man of common sense knows that an innocent mistatement of a fact by a witness, is no impeachment of the credibility of such witness. Presuming .that the jurors in this case were men of ordinary intelligence, we cannot believe that any of them could have un-' derstood that the judge intended to instruct them that, if the, defendant testified falsely in any particular, he was thereby impeached, even though he honestly believed that he was stating the facts as they were. We do not find here any sufficient ground for reversing the judgment.

III. The verdict is not in the form prescribed by the statute. It is a general verdict for tbe plaintiff, while the statute is that, in actions for tbe recovery of specific real property, “ tbe verdict shall specify tbe estate which shall have been established on the trial by the plaintiff in whose favor it shall be rendered, whether such estate be in fee, for his own life, or for the life of another, stating such lives, or whether it be for a term of years, and specifying the duration of such term,” R. S., chap. 141, sec. 14, subdivision 7.

Under the pleadings, two issues or questions of fact were submitted to the jury. These were: 1st, Whether the plaintiff was the absolute owner “ in fee simple ” of the land in controversy, as averred in the complaint; and 2nd, whether the defendant unlawfully withheld the possession thereof from him as therein charged. The general verdict for the plaintiff is a finding upon both these issues in his favor. It is a finding that the plaintiff was the absolute owner in fee simple of such land, and that the defendant unlawfully withheld from him the possession thereof. Everit v. The Walworth Co. Bank, 13 Wis., 419 ; Krause v. Cutting, 28 id., 655.

The substance of the verdict is precisely what the statute requires it to contain. But it is not in the form prescribed by the statute. In that respect it is defective. Should the judgment be reversed because of such formal defect, which cannot possibly affect the rights of any one? This question is answered in the negative by the provisions of sec. 40, chap. 125, R. S. “ The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

The judgment of the circuit court must be affirmed.

By the Cowri. — Judgment affirmed.