
    Young et al. v. Stone et al.
    
      Fee of counsel — In partition proceedings — Allowance by court — Sec' tion 5778, Rev. Stat. — Attorney waives right under statute when he makes agreement with parties as to compensation.
    
    1. Under section 5778, Revised Statutes, authorizing the court jo. partition proceedings to allow a reasonable fee to plaintiffs counsel, to be taxed as costs in the case, the power conferred is limited to such services as are rendered for the common benefit of all the parties; for services rendered in litigation between parties to the suit, no allowance can be made by the court under this section.
    2. Where an attorney makes an agreement with the plaintiff in partition proceedings, whereby he is to receive a certain compensation for his services in the matter, he necessarily waives any right he might otherwise have had to be awarded compensation by the court under the statute; in such case the ■ contract fixes his rights and the measure of the relief to which he may be entitled.
    (Decided October 20, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    The object of this proceeding is to obtain the reversal of an order and judgment of the circuit court in a partition proceeding, making an allowance of $2,500 to L. A. Russell for services as an attorney under section 5778, Revised Statutes.
    Silas M. Stone, his brother Francis W. Stone, and their sister, the said Cornelia T. Young, as representatives of the brother of the whole blood of Silas S. Stone, deceased, brought an action in the court of common pleas of Cuyahoga county in partition, claiming to be the owners of one-half of . a large amount of land, described in the petition, formerly owned by Silas S. Stone. The brothers . and sisters of Margaretta Stone were made defendants, and were conceded to own one-half of the land sought to be divided. The half-brother and sisters of Silas S. Stone were on their motion made parties defendant and claimed to be owners of the property, as tenants in common, with the plaintiffs. This claim was decided against them in 50 Ohio St., 495, and by that decision Silas M. Stone, Francis W. Stone and Cornelia T. Young were each ascertained to be the owner of an undivided one-sixth of the property. On the case being remanded to the circuit court, partition was made in accordance with the decision of this court; that is, one-sixth was divided to Silas M., one-sixth to Francis W. and one-sixth to Mrs. Young, her husband William S. Young and George L. Carlisle, to whom she had in the meantime conveyed an interest in. her one-sixth. The other half was aparted to the brothers and sisters of Margaretta Stone. L. A. Russell was the attorney originally and throughout of Silas M. Stone and Mr. Miller, of the city of New York, was the attorney of Francis W. Stone. Mr. George L. Car-lisle, of New York, a plaintiff in error, was the original attorney of Mrs. Young. Carlisle had a contract with her for his services, which is as follows :
    ‘‘This witnesseth that: .Cornelia T. Young has retained and employed and does hereby retain and employ, George L. Carlisle, of No. 2 Wall street, New York City, to be her attorney and to represent her in all matters relating in any way to the estates of Silas S. Stone and of his wife Margaretta Stone, both deceased, or the settlement of either of them and of any and whatever claim or other interest she now has or hereafter may have against her brother Francis W. Stone, arising from or by reason of any writing which she may have given to him. and relating in any way to either or both of said estates.
    “The said Carlisle accepts said employment upon the terms hereafter set forth, and agrees to. attend to the interest of said Young in said matters to the best of his ability.
    ‘ ‘In consideration of the foregoing, and of one dollar, each to the other in hand paid, receipt whereof is acknowledged,- it is mutually promised, understood and agreed that the said Carlisle for his services hereunder shall be entitled to and shall receive an amount equal to one-fourth (i) of all and whatever shall be recovered by or paid to said Young directly or indirectly on account of any of said claims or interests, in lieu of any other fee therefor.
    “And it is further understood that all necessary incidental expenses for the prosecution of said claims or interests shall be borne and paid by said Young. But it is asserted by said Carlisle, that, in his opinion, the amount thereof will not reach five hundred dollars ($500.00).
    “It is also understood and agreed that the said claims and interest shall not be settled or compromised without the consent of both parties hereto, and that this agreement, as a whole, binds said parties, their heirs, representatives and assigns.” (Signed by the parties.)
    
      Carlisle then employed Mr. L. A. Russell as local attorney by an agreement in writing, which is as follows:
    “Whereas, George L. Carlisle is the attorney at law and in fact of Cornelia T.-Young in all matters relating to her interests in the estate of Silas S. Stone and Margaretta Stone, both deceased;
    “And whereas, it may become necessary or proper for him, in the discharge of his duties aforesaid, to have the assistance of an Ohio lawyer.
    “Now, therefore, this shows:
    “That L. A. Russell, of Cleveland, Ohio, has been and is hereby retained and employed by George L. Carlisle, of New York City, to appear for Cornelia T. Young in any partition or other suit or proceeding which may be commenced or taken with respect to the settlement of her interest in the estates of Silas S. Stone and Margaretta Stone, both deceased, either or .both; and to do and perform all things necessary for the speedy and complete settlement of said interest.
    “Said Russell accepts said employment and it is mutually agreed as follows:
    “1st. Said Carlisle shall be consulted as the principal or employing attorney herein in any such suit or proceeding hereunder (and as often as may be priorthereto)whichsaidRussell shall commence or take, and (as near as may be), all1 papers necessary and of importance for the prosecution of said interest shall be first submitted to said Carlisle; and all 'payments on account or otherwise of said interest, shall be made to said Carlisle as the attorney for said Young.
    “2d. The compensation which said Russell may charge for such service shall in no event be more than he will charge and receive from either Silas S. Stone or his brother, Prank I. Stone, for like services, nor more than seven and one-half (7i) per cent, of the net amount of whatever recovery in cash shall be made through his efforts for said Cornelia T. Young during the continuance here-, of ; except that if a, suit in equity (other than in partition), or in law, for ejectment, shall be brought in the name of said Cornelia T. Young hereunder against the personal representatives, heirs or next of kin of said Margaretta Stone or Silas S. Stone, deceased, or any other person or persons to recover any moneys or other property now in the possession of said personal representatives, heirs, next of kin, or any other person, under a claim of title thereto or interest therein, but in which said Young is entitled to share, or if, such suit be brought against said Young then and in any such event, said Russell will charge and shall 'be entitled to receive for such services no more than ten (10) per cent, of the net final recovery therein to said Cornelia-T. Young.
    “It is also understood and agreed that in event that any real or other property belonging to said estates or either of them, be, in the settlement of the same, recovered by said Russell for said Cornelia T. Young during the continuance hereof, and which shall be set apart and accepted by said Young, either in common with her said brothers or either of them, or in severalty, that said Russell, for the purpose of computing and collecting his compensation hereunder, shall be entitled to substitute the value of said Young’s interest in such lands at the time as so much cash; and if dispute shall arise as to the value thereof, the same shall be finally determined by arbitration in the usual way.
    £ ‘In witness whereof, we have hereunto set our hands and seals this 12th day of February, 1892.
    . “Signed, sealed and delivered in the presence of James L. Barger.
    George L. Carlisle,
    L. A. Russell. ”
    At the conclusion of the services, Mr. Russell claimed of Mr. Carlisle upward of $20,000 for services he had rendered under the contract; and in the motion made by Silas Stone for the confirmation of the report of the commissioners, he: “Moved that the court fix and allow to said L. A. Russell of the plaintiff’s attorneys, as his counsel fee against Cornelia T. Young, William S. Young and George L. Carlisle, as the owners in common of one-sixth of said estate, and fix the same as a lien upon said one-sixth set off in severalty to them by the partition herein, the sum of $15,455.70 being’ as and for 7£ per cent, upon the value of their one-sixth of the said estate as found by the said commissioners in partition, being $206,076— said sum being the amount of said counsel fee as fixed by contract for said services in said cause between said parties and the said L. A. Russell, and that the court order that unless the said sum of $15,455.70 be paid by said parties to said Russell by a date to be fixed upon by said court, that said one-sixth of the said estate so set off to said parties in partition, or so much thereof as may be necessary to be sold as upon execution at law in order to pay the said' counsel fee so allowed.”
    
      Alter hearing the evidence the court found the facts and rendered judgment thereon as follows:
    “The court finds that under the provisions of the statutes of Ohio, the court has jurisdiction and authority to make an allowance to counsel for services rendered ‘for the common benefit of all the parties’ to be taxed in the costs of the case; that a reasonable fee for the services rendered by the several counsel in and about the said partition cause in effecting and securing the partition of lands and tenements actually aparted and set off in severalty to the said owners were of the value of $15,000 — one-sixth of which should be paid by Cornelia T. Young, William Shipman Young and George L. Carlisle to L. A. Russell, for the services of the said Russell rendered in said cause, for said three parties last named, in securing the partition of the lands actually aparted and set off to them.
    “The court also finds that the services for which the said Russell is allowed $2,500 were embraced within the terms of the written contract signed by said L. A. Russell and said George L. Carlisle, and the court in making this allowance, save to said Russell all his rights under his said contract except so far as the amount allowed him herein shall .be taken as payment in part for a portion of the services he was to render under his said contract.
    “It is therefore ordered, adjudged and decreed that said sum of $2,500 so allowed to said Russell as attorney fees, be taxed in the costs of said cause against the said George L. Carlisle and Cornelia T. Young and William Shipman Young, and that unless, etc., * * * execution issue therefor.”
    
      To this order and judgment the plaintiff in error excepted and now ask to have it reversed, and the motion on which it was made, overruled.
    
      Boynton & Horr, for plaintiffs in error.
    
      L. A. Bussell, for defendants in error.
   Minshall, J.

The professional services for which an allowance was made by the circuit court to Mr. L. A. Russell, as an attorney in the case, were rendered under a written agreement by which he was employed by George L. Carlisle, the attorney at law, and in fact of Mrs. Young. The agreement, as will appear from an examination of it, was between himself and Mr. Carlisle — the latter having an agreement in writing between himself and Mrs. Young, by which he was, for his services, to receive a definite part, one-fourth, of the property recovered, for “representing her in all. matters relating in any way to the estate of Silas S. Stone and of his wife, Margaretta Stone, both deceased.” The entire services rendered by Mr. Russell under his employment by Car-lisle, aside from the partition of the estate, by proceedings for that purpose, were rendered in litigation between the children of a deceased and only brother of the whole blood of Silas S. Stone, deceased, and the brothers and sisters and representatives of those deceased, of his half-blood. Mrs. Young and her two brothers, Silas M. Stone, and Francis W. Stone, were the children of the deceased brother of the whole blood. Those of the half-blood claimed the right under the statute of descent and distribution to share equally with those of the whole blood. It was a controversy of much importance to these children: For if the claim of the half-bloods prevailed, the interest of each in the estate would be reduced from one-sixth to a much smaller aliquot part. But it concerned no one in the partition proceedings except the parties to it. It was finally determined by this court, in favor of the children of the deceased brother of the whole blood of Silas S. Stone. Stone v. Doster, 50 Ohio St., 495.

Two questions are presented by the record, either of which is decisive of the case. (1), Whether, regard being- had to the character of the services, the court had power under section 5778, Revised Statutes, to make an allowance of any sum to the attorney for services in the litigation between the representatives of the whole blood and those of the half-blood, of Silas S. Stone, deceased; or (2), if so, had it power to make any allowance, when it appeared that the attorney and his clients had an express written agreement as to what his compensation should be for all services bo be rendered in the matter.

(1) The statute under which the allowance was made reads as follows:

‘ ‘The court having regard to the interest of the parties and the benefit each may derive from a partition, and according to equity, shall tax the costs and expenses which accrue in the action including reasonable counsel fees which shall be paid to plaintiff’s counsel unless the court award some part thereof to other counsel for services in the case for the common benefit of all parties ; and execution may issue therefor as in other cases.” Section 5778, Revised Statutes.

Now it is evident, we think, from the language of this section in connection with its history, that the services of “the plaintiff’s counsel” in partition proceedings for which, the court may make an allowance and cause the same to be taxed along with “the costs and expenses which may accrue in the action,’’are such services as are rendered “for the common benefit of all parties” in the case. The statute as first enacted, 29 Laws. 254, section 16, simply included the costs and expenses- that may accrue in the action. These of course could not be otherwise than for the common benefit. It-was afterward, in 1880, so amended, as to include “a reasonable counsel fee” to be paid the plaintiff’s counsel, “unless the court award some part thereof to other counsel for services in the case for the common benefit- of all the parties.” The latter clause, “for the common benefit of all the parties,” is a controlling one in the construction of the statute. Services for which an allowance may be made to other counsel and taxed as part of the costs, are required to be of like character with the costs, expenses and the counsel fee authorized to be taxed in favor of the plaintiff’s counsel in the case. So that no counsel fee, whether to the plaintiff’s counsel or otherwise, can be allowed by the court and taxed as costs in the case, under this section, unless the services were rendered for the common benefit of all the parties. The services rendered are to be such as may be taxed as costs and expenses and apportioned to the parties .according to their respective interests. The allowance made in this case, and taxed to the one-sixth interest owned by Mrs. Young, her husband and •Carlisle, was not for such services. They in no way benefited or affected the next of kin of Mar■garetta Stone, deceased.

But it is claimed that the language, “The court having regard to the interest-of the parties and the benefit each may derive from a partition, and according to equity,” conferred power on the court to make the allowance it did, and to charge it upon the interest of Mrs. Young, her husband and Mr. Carlisle, in the property as partitioned, as the equitable contribution they should make to the services rendered by Mr. Russell in defeating the claim made by the half-bloods. The statute does not warrant this construction. Without doubt the court may determine the proportion of the costs, expenses and counsel fees of the character above stated, that should be taxed to each party, regard being had to the interest of each in the subject of partition; but the costs, expenses and counsel fees so apportioned, must have been made for the common benefit of all the parties to the action, and must not include compensation for services rendered by counsel in litigation between some of the parties to the suit, and others who are adversaries in interest. Compensation for such services is a matter of agreement between the counsel and his clients, express or implied; and the court, in such ease, has no more power to fix the compensation the plaintiff should pay his counsel, than it has in an ordinary civil action. Such has been the construction placed by the courts of other states on their own statutes similar to ours; and also conforms to the rule observed in equity. In Grubb’s Appeal, 82 Pa. St., 1, it was held that it was “ indispensable aid only that was contemplated —such usual and accustomed services as the exigencies of such case should render necessary. The compensation of ■ counsel for services in the trial of contested cases was not the end in view.” In Fidelity Insurance Co’s. Appeal, 108 Pa. St., 342, it was held that: “The fees should be graduated according to the circumstances of each case, the nature and extent of the services necessarily rendered for the common benefit of all the parties in the case. It (the compensation) does not include the expenses of adversary proceedings resulting from a defense to the demand for partition, or from any other cause. ” See also the following cases: Kilgour v. Crawford, 51 Ill., 249; Stempel v. Thomas, 89 Ill., 147; Building Association v. Savings Bank, 142 Pa. St., 121; Coles v. Coles, 13 N. J. Eq., 365.

2. As to the second question: It appeared from the motion of the counsel as well as from the evidence, that he had a written agreement with Mr. Carlisle, whereby he was to be compensated for all services rendered in the matter. Carlisle was the attorney in fact of Mrs. Young; and he was to perform all the services in and about the matter for a fourth interest in the property claimed by Mrs. Young. By the agreement between Car-lisle and Russell, the rights of the latter to compensation for services rendered in his employment, must be measured and determined. He cannot have the right given him by statute for a reasonable compensation, and also, a right to compensation secured by contract for the same services. By the contract he waived his right under the statute, and must rely on it for such compensation as he is entitled to, be it much or little. This is in analogy to the principle that where there is an express contract none can be implied. To insist on compensation under the statute, would be to repudiate the contract, which he certainly cannot do. It is entirely competent to parties to make such a contract, as it contravenes no principle of public policy. The statute is designed for eases in which there has been no contract. The fact that his rights under the contract were greater than they would be under the statute, and that the court did not assume to measure his rights under the contract, but, simply made an allowance under the statute, and directed it to be used as a credit on any sum that might be due him under the contract, is of.no consequence. The contract precluded the court from taking any action in the matter. It, in a summary way, had no right to assume that anything would be due the attorney under the contract. The services may not have been fully performed according to con-, tract; or may have been in part, or fully, paid. In fact, it was admitted that some $4,500 had been paid on it. Under such circumstances the court should have overruled the motion of the counsel for compensation under the statute. Where there .is a contract and the client refuses to pay what is due under it, the remedy of the attorney is in an ordinary suit upon the contract for damages, in which suit, on any issue of fact, either party is entitled to a jury.

For these reasons the order of the circuit court making an allowance to Mr. Russell for services, rendered in the proceeding is reversed, and his motion for such allowance is overruled.

Reversed.

Burket and Spear, JJ., dissent from the second proposition of the syllabus.  