Opinion
1 Div. 79.
May 9, 1940.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Geo. A. Sossaman, of Mobile, for appellant.
There is no statute in Alabama fixing receiver's fees, but the statute fixing administrator's fees is usually followed as to receivers. Code 1923, § 5923; Magee v. Cowperthwaite, 10 Ala. 966; Newberry's Admr. v. Newberry's Distr. 28 Ala. 691. The fees prescribed for administrators are reasonable as fees for the receiver in this case. Pinckard's Distrs. v. Pinckard's Admrs. 24 Ala. 250; Sullivan Timber Co. v. Black, 159 Ala. 570, 48 So. 870; Clark, Law of Receivers, § 826a. The fixing of the receiver's fee is a judicial matter. Code, § 10113; Pitts v. Walker, 212 Ala. 645, 103 So. 850. Any contract for receiver's fees is subject to review by the court to see that it is just and fair; such a contract cannot stand against the judgment of the court. 65 C. J. 925.
Harry T. Smith Caffey, of Mobile, for appellees.
A receiver who agrees to act as such gratuitously for a given consideration cannot, after he has been appointed with such understanding, repudiate his agreement as to compensation but is bound by it, and the court will not allow him compensation in violation of his agreement. Polk v. Johnson, 35 Ind. App. 478, 65 N.E. 536, Id., 160 Ind. 292, 66 N.E. 752, 98 Am.St.Rep. 274; West India Co. v. Gayley Sugar Co., 13 Porto Rico Fed.Rep. 171; Drake v. Drake, 66 Ind. App. 85, 117 N.E. 871; Steel v. Holladay, 19 Or. 517, 25 P. 77; New Amsterdam Cas. Co. v. Madison Trust Co., 81 Ind. App. 157, 142 N.E. 727; Ephraim v. Pacific Bank, 136 Cal. 646, 69 P. 436; 53 C.J. 383; College of Charleston v. Willingham, 13 Rich.Eq., S.C., 195; 65 C.J. 912, 925; Louisville Trust Co. v. Warren, Ky., 66 S.W. 644; Wilson v. Biggama, 73 Wn. 444, 132 P. 43; 2 Perry, Trusts (6th Ed.) § 918; Ladd v. Pigott, 215 Mo. 361, 114 S.W. 984; Birmingham Trust Sav. Co. v. Hightower, 233 Ala. 39, 169 So. 878; In re Whitney's Est., 78 Cal.App. 638, 248 P. 754, 755; James v. Echols, 183 Ark. 826, 39 S.W.2d 290; Washington Loan Trust Co. v. Convention of P. E. Church, 54 App.D.C. 14, 293 F. 833, 34 A.L.R. 918; Secor v. Sentis, 5 Redf., N.Y., 570. If the receiver found the duties as such more onerous than he anticipated at the time he made the agreement, his remedy was to resign. Brown v. Brown, 6 Bush., Ky., 648; Washington Loan Trust Co. v. Convention of P. E. Church, 54 App.D.C. 14, 293 F. 833, 34 A.L.R. 918-921.
This is an appeal by the receiver from a decree of the court on his application to fix the amount of his compensation, in which the court fixed an amount unsatisfactory to him.
There being no statute which controls this question, nor which furnishes a guide for doing so, it is primarily within the sound discretion of the court having the custody and control of the receivership, having regard to all the relevant circumstances. And, in reviewing an exercise of that discretion on appeal, this Court will have much respect for the judgment of that court. There must appear to be an abuse of discretion or a failure to give due consideration to some legal question or factual status. Pitts v. Walker, 212 Ala. 645, 103 So. 850; Clifford v. Montgomery, 202 Ala. 609, 81 So. 551; Stuart v. Boulware, 133 U.S. 78, 10 S.Ct. 242, 33 L.Ed. 568; Trustees of Int. Improvement Fund v. Greenough, 105 U.S. 527, 26 L.Ed. 1157.
When a trust is created by agreement in which the compensation of the trustee is fixed, it will be so limited. Birmingham Trust Savings Co. v. Hightower, 233 Ala. 39, 169 So. 878; 65 Corpus Juris 912, 925; Washington Loan T. Co. v. Convention of P. E. Church, 54 App.D.C. 14, 293 F. 833, 34 A.L.R. 913, 918.
This is also effective to bind an executor named in a will which fixed his compensation as such, though no other trust relation is created. 24 Corpus Juris 989, section 2424, page 991, section 2425.
But a different rule obtains when an agreement is made between complainant and a proposed receiver. The court will closely scrutinize the bargain, when it arises, and if it seems clear that there is no overreaching, and it is beneficial to the trust, the court may properly respect and enforce its terms. Polk v. Johnson, 160 Ind. 292, 66 N.E. 752, 98 Am.St.Rep. 274; 53 Corpus Juris 383. Such an agreement is binding on the receiver but not on the court. Drake v. Drake, 66 Ind. App. 85, 117 N.E. 871.
In this case the court was apparently controlled to a large extent by an agreement made with the receiver by the complainant at the time of his appointment. The receivership was of a small chain of lunch stores and accessories, in which the receiver had been employed theretofore. His compensation had been weekly, and was increased by such agreement. True the court was not a party to such agreement and did not approve it in advance. Certain reasons are urged here, as they were in the trial court, why the receiver should not be bound by that agreement. No doubt all of them were given consideration by that court in exercising its discretion. We do not think they show an abuse of discretion, nor a failure to give due regard to any legal or factual status apparent in the record.
Affirmed.
GARDNER, C. J., and THOMAS and BOULDIN, JJ., concur.