Taylor v. Wharton

delivered the opinion of the Court:

In Wright v. Ellison, 1 Wall. 16, 17 L. ed. 555, the court said: “It is indispensable to a lien thus created that there should be a distinct appropriation of the fund by the debtor, and an agreement that the creditor should be paid out of it.” In Wylie v. Coxe, 15 How. 415, 14 L. ed. 753, the court found “that the complainant was to receive a contingent fee of 5 per centum out of the fund awarded; ” that “this being the contract, it constituted a lien upon the fund, whether it should be money or scrip. The fund was looked to, and not the personal responsibility of the owner of the claim.” In Ingersoll v. Coram, 211 U. S. 335, 53 L. ed. 208, 29 Sup. Ct. Rep. 92, there was an agreement that Ingersoll should receive a certain amount, “out of the fund secured from the estate,” and the court found that this indicated an intention to make that fund a security for the services to be rendered and created an equitable lien on the fund. In the case of Barnes v. Alexander, 232 U. S. 117, 58 L. ed. 530, 34 Sup. Ct. Rep. 276, it appeared that Alexander, who was an attorney, was to receive one third of the fund involved as compensation for his services, and that he looked *109only to this fund. It was held that this contract, being definitely limited to payment out of the fund, created a lien upon that fund. But the facts in these cases, it will be seen, are quite different from the facts in the case before us. Here there was no appropriation of the fund and no agreement that Mr. Bout-well should be paid oiff. of it. Under the agreement between "Wheelwright and Boutwell the latter was to receive, and did receive, a retaining fee of $1,000. In addition to that amount "Wheelwright was to pay him a certain commission on all sums recovered. This commission was to be “in addition to the above mentioned retaining fee.” The amount recovered, therefore, was simply to afford the basis upon which to compute the fee— nothing more. The agreement did not attempt to give, nor did it give, Mr. Boutwell any interest or share in the claim itself, nor any interest in the fund to be recovered. Nutt v. Knut, 200 U. S. 12, 50 L. ed. 348, 26 Sup. Ct. Rep. 216; Thurston v. Bullowa, 42 App. D. C. 18. In the former case, the contract was to pay an attorney for his services a sum equal to 33 J per cent of the amount allowed on the claim. “Such an agreement,” said the court, “did not give the attorney any interest or share in the claim itself nor any interest in the particular money 2>aid over to the claimant by the government. It only established an agreed basis any settlement that might be made, after the allowance and payment of the claim, as to the attorney’s compensation.”

There is nothing in the ratification by Henry S. Prevost of the agreement between Boutwell and Prentiss that in any way changes the tcnns of the original contract as to compensation. It simply recognizes Prentiss as jointly interested with Bout-well therein, and accepts the services of the two or the survivor of them or tlieir representatives, etc., “as a continuance and a performance in full” of said original agreement.

The question whether an attorney’s charging lien may be asserted against the fund in the hands of appellant is not here involved and necessarily is not determined.

*110Decree reversed, with costs, and cause remanded for further ' proceedings not inconsistent with this opinion.

Reversed and remanded.

A petition for a rehearing was granted,

delivering the opinion of the Court:

A petition for rehearing has been filed by the appellees in this case. Appellant’s application for special appeal was allowed by this court because we understood that the court below had ruled that appellees had a lien upon the funds in question by virtue of the contracts set forth in our opinion. That understanding was strengthened by the briefs thereafter filed and the presentation of the case at bar. AATe therefore reversed the decree, and, inasmuch as there was a prayer in appellees’ original bill to the effect that if they were not entitled to compensation under said contracts they were entitled to reasonable compensation for services rendered, upon the theory that they had created the fund in question, remanded the case for further proceedings. It is now made to appear by the application for rehearing that .the court below ruled that no lien existed by reason of said contracts. In other words, the trial court’s decision upon this point was in harmony with our own, and therefore should have been affirmed, and not reversed.

The petition for rehearing will be granted, but inasmuch as we would not have allowed the special appeal had we understood the real status of the ease, without further argument we will dismiss that appeal with costs.