BIRD, V. C.

Suit to recover alimony paid to defendant as plaintiff's counsel.

Samuel G. Narr, for petitioner. D. J. Pancoast, for defendant.

BIRD, V. C. The petition in this case is filed by Mrs. Koenig against Mr. Harned, to compel him to pay over to her certain moneys which she alleges he received from her husband in a suit in this court which she had instituted against her husband for divorce upon the ground of adultery. In that suit Mr. Harned, being her counsel, made application to the court for an order upon her husband requiring him to pay to her alimony, and to pay to her counsel a counsel fee. An order was made directing the payment of $8 per week by way of alimony, and $50 to her counsel as counsel fee. The counsel fee was paid, as was the alimony, during the pendency of the proceedings.At the request of Mrs. Koenig, the alimony was all paid to her counsel,—the principal part of it, if not all, paid to him in the presence of Mrs. Koenig. The amount of alimony thus paid was $712, of which sum $170 has been paid to Mrs. Koenig. After the termination of the suit for divorce, Mrs. Koenig made application to Mr. Harned for the balance of the alimony which he had received, but which he refused to pay in full, offering her at first less than $200, and finally $200. It appears that his reason for refusing to pay the balance of the alimony over to her was his claim against Mrs. Koenig for compensation for his services. Mrs. Koenig insists that he is not entitled to any portion of this alimony, and that, by virtue of an agreement between them at the time of the institution of the suit for divorce, she is entitled to it all.

Three questions present themselves for consideration: First, has this court jurisdiction of the question which arises in this matter between the parties? Secondly, was there a definite agreement and understanding between the parties by which Mr. Harned was bound either as to the extent of his compensation, or as to the source of it? And, third, if no agreement, then is he entitled to retain any portion of the moneys paid to him by way of alimony?

From the first I have had very serious doubts as to the jurisdiction of the court to determine these questions. In every aspect of the case, as it is presented by the petitioner, nothing more or less appears than the ordinary relation of debtor and creditor. This seems to be emphatically so from the statement of Mrs. Koenig herself, for her language unequivocally is that she requested Mr. Harned to receive this money for her, in order that she might avoid coming in contact, personally, with her husband; hence this money, or any part of it which belongs to her, is money which he has received for her use, and no other relation of confidence exists between the parties than that which arises in every such case where money has been received by one person for another at his or her request. But the petitioner's counsel insists that there is a precedent for this upon the files of this court; and that Vice-Chancellor VAN FLEET, in a very similar case, advised proceedings against a solicitor, and compelled him to pay to his client moneys which he had received during the pendency of a suit for divorce. I am not at all clear that the facts in that case are similar to the facts in this. I would have no doubt whatever about the jurisdiction of the court to compel a solicitor, one of the officers of the court, to fulfill every obligation imposed upon him, by way of trust or confidence, in the management of a cause; but the case before me is not of that nature. This money Mrs. Koenig was entitled to by the order of the court, and might have received it, but, as I have said, she distinctly requested Mr. Harned to receive it for her; and hence it seems to me the ordinary relation of debtor and creditor only exists between the parties, he not having received the money by the order of the court, nor in any respect simply as solictor. As no objections looking to the jurisdiction of the court were raised by the counsel for Mr. Harned, I would not thus speak of the question were it not that I do not desire the case, in the aspect thus presented, to be considered as a precedent of any value. And, as the question of jurisdiction has not been raised by counsel, I shall look into the merits of the case.

Can I find, then, in the evidence an agreement between the parties which will solve, satisfactorily to my mind, the problem raised by the petitioner? Mrs. Koenig swears that, when she consulted Mr. Harned, she paid him a retaining fee of $50; and that he said to her then that that is all he would ever ask her for, but, if he felt he needed more, he would get it of Mr. Koenig through the court. She further says that he said he would perhaps need more, but would apply to the court for it. She also says distinctly that there was no agreement made that she was to bear the expenses of her suit for divorce in case there was no defense made. An uncle of Mrs. Koenig, Mr. Phillips, was put upon the stand by her, who testifies that he called upon Mr.Harned after the suit for divorce had been instituted, and had some conversation with him about the suit. He says he asked him if it was true that all the expense to Mrs. Koenig would be only $50, whether if she won, or if she lost. He says that Mr. Harned said that that was so. He also says he inquired with respect to the alimony, and asked if there would be any other expense in case he got alimony, and he said, "No." Mr. Phillips expressed surprise at this, and asked him how it was. He says that Mr. Harned answered and said that the court would compel Mr. Koenig to pay him for his services. Mr. Harned with equal emphasis says that Mrs. Koenig represented to him that she had ample means of her own to conduct this suit; that Mrs. Koenig inquired of him the probable cost and expense in case there was no defense, and that he told her it would be about $150. He says that he agreed that $150 should pay all expenses, and pay him for his services; and that this she agreed to pay him in case there was no defense. He also says a question arose between them as to the probable expense in case of her husband filing an answer. He says he told her in that case the litigation would probably be very lengthy and exhaustive, and that he should want to be secured for at least $500 for his services. He says that in that connection she told him that Mr. Phillips, of Massachusetts, held $3,000 of her money, and that she would pay him the $150, or the $500, as the case might be. He also says that he told her he could apply to the court for counsel fee and for alimony, but that she objected to this on the ground that such a step would be more likely to cause him to file an answer. Very much of what took place between the parties with respect to the extent of the litigation, in case he should file an answer, is not in dispute. It seems that this branch of the case was talked over between them for the purpose, upon the part of Mrs. Koenig, of ascertaining the probable cost to her. The theory upon the part of Mrs. Koenig is that, when she paid Mr. Harned the $50 by way of retainer, it was all that she was to pay to him out of her own funds; in other words, according to her present view of the case, Mr. Harned was to conduct the case to a final hearing for the $50, in case there was no defense, and, in case there was a defense, for $50, and for such additional counsel fee as he might, perchance, be able to have the court direct Mr. Koenig to pay. Therefore, according to her view, had she succeeded in procuring a divorce without Mr. Koenig making any defense, Mr. Harned would have been obliged to pay all of the costs, including taxed costs, witness fees, and master's fees, out of the $50. It is scarcely probable that a counsel of much less experience than Mr. Harned would give the time and attention necessary to procure a final decree in such a case for the very small amount of compensation, if any at all, left to him after the payment of the costs and expenses out of the $50. There can be no doubt in my mind,—indeed the whole case shows it, the printed book in the original case being before me,—but that the desire and aim of Mrs. Koenig was to avoid stirring up Mr. Koenig to file an answer, and make defense to her suit for divorce; and hence her willingness to pay all costs and charges rather than to allow Mr. Harned to apply to the court, in the first instance, for alimony or counsel fee. In my mind, therefore, and from the rest of the case, as the facts present it, there was no agreement between Mrs. Koenig and Mr. Harned that he should render all of his services required in the case, and bear all the burdens by way of costs and expenses, for the sum of $50. But was there any agreement with respect to his compensation in case there was a defense? I have stated the substance of what passed between the parties upon this subject. It is certainly very indefinite; and, when it is considered that Mr. Harned very decidedly contradicts many of the principal statements made by Mrs. Koenig, it will be plain that the court cannot find that there was an agreement as to what his compensation should be in case there was a defense to the suit. And if it is said that Capt. Phillips speaks upon this point, and that he inquired of Mr. Harned with respect to the costs to Mrs.Koenig, and that Mr. Harned said to him that whether she won, or whether she lost, the expense to her would not be more than $50, it will be borne in mind that Mr. Harned said, as Mr. Phillips puts it, that the court would compel Mr. Koenig to pay him for his services. Mr. Phillips does not say that he inquired of Mr. Harned whether or not he had agreed to do all the work of counsel in a litigation which, at that time, had every appearance of being very bitter and very protracted, and of occupying a very great deal of time, for the small compensation of $50. Certainly not. Mr. Phillips, by the very frank and open manner of his inquiries, did not expect it, and hence expressed his surprise to Mr. Harned, and it seems was only satisfied when Mr. Harned told him that the court would compel Koenig to compensate him for his services. Now, to my mind, all this is entirely consistent with what was in the mind of the parties at that time, both Mrs. Koenig and Mr. Harned. In the first instance, in case there was no resistance, Mrs. Koenig, being anxious to procure the divorce, was willing to pay the entire expense out of her own funds; and in case an answer was filed, being confident of making a successful issue, Mr. Harned supposed there would be no difficulty in compelling Koenig, the losing party, to pay all costs, and also all counsel fees. But this, the question of counsel fee, as well as alimony, being in the discretion of the court, he failed in, notwithstanding the effort, as Mrs. Koenig failed in satisfying the court that she was entitled to a decree upon the ground of adultery. I do not apprehend that Mrs. Koenig, as a fair-minded woman, or Mr. Phillips, as a man of apparent character and business habits, ever supposed that Mr. Harned would do all the work required to be done in a case of this nature for $50. It must have been this consideration that prompted Mrs. Koenig to let Mr. Phillips know of the situation, and, when he came to New Jersey from Massachusetts, to have him inquire of Mr. Harned with respect to this subject of compensation. Each of them, beyond question, well understood that the counsel who conducted such a litigation would require a greater compensation for his services than $50; hence, I say, the inquiry upon the part of Capt. Phillips. The burden of showing an agreement is on Mrs. Koenig. Now, with respect to this agreement my conclusion is, from the whole testimony, that Mr. Harned accepted a retaining fee of $50 from Mrs. Koenig, not as full compensation, but as a retainer, with the understanding that he was to be further compensated by Mrs. Koenig for his services, in case Mr. Koenig made no defense to the suit; and that it afterwards came to be understood between them, if not in the first instance, that, in case he did make defense to the suit, then Mr. Harned would look to Koenig for compensation to the extent that the court would order him to pay counsel fees. But I cannot conclude from the testimony that Mr. Harned was to perform the services that he did without fair compensation, in case the court should refuse to allow alimony and further counsel fee to be paid by Mr. Koenig. As I have intimated, this seemed reasonable to Mrs. Koenig and to Mr. Phillips, from their interest about the matter afterwards, as has been shown; and I think it will appear more reasonable still when the services actually rendered by Mr. Harned come to be considered.

Upon the application for alimony, an application was also made for a counsel fee, and a counsel fee of $50 was allowed. No additional counsel fee was allowed, although application was afterwards made for that purpose. The counsel fee so allowed was allowed in the early stages of the litigation. When the whole case was in, and the court enabled to view it in its length and breadth, a further counsel fee was refused. This being so, and counsel not bound by any agreement, what further compensation, if any, is he entitled to? To determine this we must ascertain what services he rendered to Mrs. Koenig besides filing the petition, and making the application for alimony, and numerous interviews, occupying sometimes half an hour, and sometimes a longer period of time, in making preparation for the trial. After the issue wasjoined, 14 days were occupied before the master, in the suit at Camden, in the production of testimony, during which time it is undisputed that Mrs. Koenig called on her counsel for consultation with him very frequently, often by previous arrangement, and sometimes when she was unlooked for, occupying his attention from half an hour to two hours at each visit. These facts are undisputed. Mrs. Koenig admits them. There were also several days' services in taking testimony at Bordentown. The whole amount of testimony covers over 300 pages of printed matter. After the testimony was completed, counsel was required to make preparation for the argument of the cause, to do which with any satisfaction, everyone will admit, required a considerable portion of his time. He presented the cause to the court upon final hearing. He made application to the court for an additional order upon Mr. Koenig for the payment of certain costs and charges incurred before the master, and for printing, and also for an additional counsel fee, the latter not being allowed by the court. During the progress of the cause one of the witnesses whom Mrs. Koenig produced was indicted for perjury committed upon the witness stand in her cause. This fact Mrs. Koenig communicated to Mr Harned, and he promised her to take charge of her case, and did so. The witness having been arrested, after the indictment was found against her, Mr Harned procured her discharge, upon bail, himself entering into a recognizance with the criminal for her appearance. It seems to me that further details are unnecessary. Mr. Harned, whether as counsel or bailee, had a right to hold these moneys for his pay. What shall that be? I certainly think that, by every rule applied by the courts in such instances, he is entitled to at least the sum which he offered to accept in full satisfaction, i. e., the $200. I shall so advise. And I think he is entitled to costs.