Buck v. Blair

On AppltcatioN for Rehearing. The earnestness with which appellant lias pressed his application for a rehearing of this cause and the ability of his brief in support thereof, have caused us to review our opinion with great care and caution. His main complaint is levelled at our conclusion as to the nature of his alleged acquisition of the one-half of the judgment, herein enjoined; and he suggests that a correct construction of our application of the provisions of Article 2447 of the Civil Code would lead to the conclusion that contracts made between attorneys and their clients, under which the attorneys would receive a percentage of the amount recovered in litigations entrusted to such attorneys, are prohibited by our law. We have been very unfortunate iu the use of language, if such an inference can be fairly drawn from any of our utterances in the decision of this cause. We. distinctly deny any sue!) intention and have no hesitation in recognizing the binding effect and validity of such contracts, without which many unfortunate litigants would he deprived of the only means of enforcing their rights. Wo have carefully examined and duly considered all the authorities cited by appellant in support of the legality of such agreements. But the cases quoted present contracts where the attorney was allowed an interest in the suit in the shape of a proportion of the gains to be derived therefrom through the professional services of the contracting attorney. In the e.ase before us, we have to deal with an attorney who went into the ('aso without any such stipulation, who received, during the pendency of the. suit, a part payment of his fees in money and who subsequently acquired, in payment of the balance due him by his clients; one-half of the judgment, which was then in litigation under our action in nullity, the other half of the judgment having been parted with by his clients in favor of and for the benefit of other parties. Hence, in the execution enjoined herein, the attorney is not onforc ing rights of his clients, with a stipulated proportion of the amount to *22 be'realized to accrue to him, hut, as he admits himself, he is pursuing the ;judgment debtor for his exclusive benefit and advantage, as the owner of the unpaid balance of the judgment, with which his former clients are no longer connected. The fact that he acquired that portion of the judgment in part payment of his fees earned in obtaining the same, does not make it theless a purchase. Art. 2655 of the. Civil Code defines the giving in payment as “an act by which a debtor gives a thing to the. creditor, who is willing to receive it in payment of a sum which is due.” The similarity between the contract defined in that article and that of sale is strikingly apparent. This is precisely the transaction which took place between Buck & Beauchamp, the debtors, and their creditor, the appellant herein; and we are painfully constrained to declare its nullity, under the provisions of Art. 2447 of the Civil Code. We find no error in our conclusions and our decree, must remain undisturbed. liehearing refused. Mr. Justice Todd dissents from the decision refusing the rehearing.