Gilfillan v. McKee McPherson/Opinion of the Court
A motion to dismiss the appeal of McPherson, made by the appellees, demands a preliminary consideration. This motion is made upon the ground-First, that the appellant is precluded from questioning the validity of the decree, because, having been awarded a large sum of money out of the fund for distribution, he applied for and received the same, as did all the other beneficiaries to whom awards were made, and that the decree disposed of the entire fund and has been fully executed; second, that the decree was joint against the appellants and also against the other codefendants, whereas the appellants appeal separately and alone, their codefendants not joining, and without any proceeding in the nature of a summons and severance.

1. It did undoubtedly appear, from the certificate of the clerk above mentioned, that McPherson was paid $7,070 of the amount decreed to him out of the special fund. But it further appeared that he claimed to be paid from the general fund of $147,057.63, and that his claim in that particular was denied. While the acceptance of the whole or a part of a particular amount awarded to a defendant might, perhaps, operate to estop him from insisting upon an appeal, there were practically two decrees in this case,-one applicable to the special fund, which, in the bill, the subsequent pleadings, and in the decree, had been kept as a distinct and separate matter, a portion of which fund was awarded to McPherson; and the other applicable to the general fund, in which McPherson had been denied any participation whatever. Clearly, his acceptance of a share in the special fund did not operate as a waiver of his appeal from the other part of the cecree disposing of the general fund. There is nothing inconsistent in his action in accepting the amount awarded to him from the special fund, and appealing from the refusal of the court to award him the general fund. As was said by this court in Embry v. Palmer, 107 U.S. 3, 8, 2 Sup. Ct. 25, 'No waiver or release of errors, operating as a bar to the further prosecution of an appeal or writ of error, can be implied except from conduct which is inconsistent with the claim of a right to reverse the judgment or decree which it is sought to bring into review. If the release is not expressed, it can arise only upon the principle of an estoppel. The present is not such a case. The amount awarded, paid, and accepted constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be construed into an admission that the decree he seeks to reverse is not erroneous.'

2. The objection that an appeal was not taken by the other defendants, that they did not join in the appeal, and that there was nothing in the nature of a summons and severance, is equally untenable. The decree was several, both in form and substance, and the interest represented by each defendant was separate and distinct from that of the other. In such cases any party may appeal separately to protect his own interest. Cox v. U.S., 6 Pet. 172; Todd v. Daniel, 16 Pet. 521; Hanrick v. Patrick, 119 U.S. 156, 7 Sup. Ct. 147; Bank v. Hunter, 129 U.S. 557, 578, 9 Sup. Ct. 346.

3. As to the merits, we are only concerned in this case with the genreal fund of $147,057.63, which is 5 per cent. upon the 30 per cent. which the Choctaws agreed to pay to McKee for his services. This fund was awarded by the final decree to Ellen Cochrane, individually, and to Latrobe and Lamon, the fund being divided into 257 57/100 parts, of which Latrobe took 75, Lamon 35, and Ellen Cochrane the residue. The parts assigned to Latrobe and Lamon represent the decree obtained by them upon their separate bills against McKee in the two following cases. Both McPherson, as executor of Cochrane, and Rollings and Gilfillan, assignees of Lea, appealed from the decree in the present case. The interests of these appellants are in reality identical. Cochrane, in his will, made in 1866, acknowledged an equal interest in the Choctaw contract to belong to Colonel Luke Lea, and on September 24, 1869, Lea assigned all his interest to Rollings and Gilfillan. No controversy exists between these parties; but if McPherson be awarded the fund, both are interested to defeat the claims of Latrobe and Lamon, which diminish by the amount of their decrees the sums which would otherwise go to the Cochrane estate. Both are also interested adversely to Ellen Cochrane, who claims the entire fund individually, while the appellants claim it as assets of Cochrane's estate, to pass, under his will, one-half to Rollings and Gilfillan, assignees, and the other half to be divided equally between Ellen Cochrane, his wife, and Mary Magruder, his sister.

The controversy between them turns upon the construction of the contract of July 16, 1870, between McKee and the Choctaws, in which Blunt and McKee agreed 'to pay to Mrs. John T. Cochrane of Washington city, D. C., 5 per centum from the 30 per centum before referred to whenever they shall receive the same.' The view of the court below was that, if there were a trust in favor of parties who had rendered valuable services before the execution of the McKee contract of July 16, 1870, that trust attached to every dollar received by McKee, and that it was not in his power to disengage any particular dollar or any particular sum of money from the charge, and hence that the amount paid into court by McKee in this case was subject to the trust found by the court to exist in the other cases in favor of Latrobe and Lamon. As the court also awarded the residue to Ellen Cochrane, it follows that it must have treated this as a donation to Mrs. Cochrane, and not as a payment for services rendered by Cochrane, as, under the latter theory, it would have been ordered paid to McPherson, as executor, to become a part of the assets of his estate.

Two questions, then, arise upon this appeal. First, was the payment in the McKee contract, to be made to Mrs. Cochrane, intended as a personal gift to her, or as a payment for Cochrane's services? Second, was such sum subject to a trust in favor of Latrobe and Lamon?

In disposing of the first question it is only necessary to consider the contract between the Choctaws and McKee, in which the former agreed that for services rendered and money expended and to be expended in the prosecution of the claim, Blunt and McKee should receive 30 per cent. of the amount awarded, or of any sum that may be paid by the United States, Blunt and McKee on their part agreeing to pay 5 per cent. of this 30 per cent. to Mrs. Cochrane, and also to adjust the claims of all parties who have rendered service heretofore in the prosecution of said claim, upon the principle of equity and justice, according to the value of the services so rendered. By section 4 of the act of the Choctaw council of February 25, 1888, the sum of $14,140 was the amount fixed as due the late John T. Cochrane, deceased, by an act of the general council of November 1, 1861, and that sum was appropriated out of any money to be received from the United States in payment of said judgment. Exactly for what this was intended as a payment does not clearly appear, but the fact that it was found to be due by an act passed in 1861 indicates very clearly that it could not have been for services subsequently rendered, although section 5 provides that the payments therein directed to be made should be accepted as full discharge and satisfaction of all the contracts and obligations of the Choctaw Nation to any and all attorneys for services rendered to the Nation in the prosecution of said claim. This appropriation was evidently intended to discharge that obligation to him personally.

The argument for Mrs. Cocharane is based upon this plain agreement on McKee's part to pay her the 5 per cent., although, as no consideration moved from her either to McKee or to the Choctaws, it is in reality a donation. Upon the contrary, the appellants insist that the payment was intended as compensation for the services of Cochrane, which had been undoubtedly of great value to the Choctaws, and that the Nation had no right to divert what must naturally have been intended as a payment for those services away from his estate, to which it properly belonged, and turn it into a donation to his widow. The oral testimony as to the intention of the parties, if competent at all, is conflicting and wholly unsatisfactory.

As already observed, the Cochrane contract provided for payment to him of 30 per cent. of the amount collected, but it was a contract wholly contingent upon his success, and was never performed either by Cochrane personally, or by Black and Lamon, his assignees. Nothing was ever earned by them under this contract, and neither Cochrane's executor nor his assignee ever stood in position to sue upon it or to claim anything by virtue of it. At the same time, both the Choctaws and McKee were ready to concede that Cochrane had rendered valuable services, which had doubtless contributed much to the ultimate success of the venture, and were, therefore, willing that compensation should be made in some form. Under the circumstances, there was nothing unreasonable in providing that this compensation should take the shape of a personal gift to Mrs. Cochrane, and thus relieve the estate from litigation with a horde of other claimants, who might be expected to appear and claim to have rendered services to Cochrane, for which they were equitably entitled to share in the compensation. The oral testimony indicates that the insertion of Mrs. Cochrane's name, instead of the executor of her husband's estate, was an idea of Pitchlynn's, the chairman of the delegation, who thought that such a provision would prevent the necessity of the fund going through the probate court. In this connection, McKee also states that the provision was put in at the instance of Pitchlynn, who stated that he considered the death of Cochrane ended his contract, and his right to any further compensation for his services in the prosecution of the claim, but he was determined to make some provision which would not be subject to the control of Cochrane's executor, or subject to his creditors, but that it should be paid directly to her, to be held and enjoyed by her in her own right; and hence that Pitchlynn insisted upon the provision in the contract in favor of Mrs. Cochrane, and the contract on the face of it expressed exactly what was intended by the contracting parties at the time. Had Cochrane or his assigns earned anything under this contract, and the promise had been to pay money earned for services fully performed, a question might have arisen as to the power of the Choctaws or of McKee to divert it from the estate in favor of the widow, but as the obligation, if any existed at all, was only a moral one, the parties had a right to discharge it in their own way.

This construction is consonant with the language of the act of the Choctaw council appropriating $14,140 in payment of the amount due to the estate of Cochrane, and providing that such payment should be a final discharge and satisfaction of their obligation to him personally. Upon the whole, we think the court construed this provision of the contract correctly.

As Mrs. Cochrane did not appeal from that part of the decree admitting Latrobe and Lamon to share with her, and as the appeal of the other parties turns primarily upon the validity of the allowance to Mrs. Cochrane, and not upon the fact that Lamon and Latrobe were admitted to share is such allowance, it is unnecessary to consider the second question. If the amount decreed to them were reduced, such reduction would redound to Mrs. Cochrane's benefit and not to the appellants.

While, as before observed, we think the court made a correct disposition of the case so far as this appeal is concerned, the reversal of the following case may make it necessary to readjust the amount due to Lamon and Black, and consequently our decree in this case must be for a reversal, to await the disposition of the following case, and for further proceedings in conformity with this opinion. 

Notes