Consaul v. Cummings

after making the foregoing statement, delivered the opinion of the court.

In this accounting of the affairs of a special partnership between attorneys at law, the survivor claims compensation for services rendered after dissolution of. the firm.

Claims of this sort are not favored. They lead to efforts to prove a disparity between the partners, when the law implies equality. They necessitate a balancing of the value of the work of each in securing the business and earning the prófits, as well as a comparison of the time they may spend on the matters under consideration. Each partner is bound to devote himself to the firm’s business, and there is no implied obligation that for performing this duty he should be paid more than his proportionate share; of the gains. Neglect by one to do his part may be of such character as to justify a dissolution. But as long as the firm continues there is usually no deduction because one partner has not been as active as the other, The same is true where death prevents either of the part

To this general rule there are exceptions, where, under peculiar circumstances, the principles of equity entitle the survivor to compensation. Thayer v. Badger, Admr., 171 Massachusetts, 279. Thus, where by authority of law, or under a power in the will, the personal representative consents that the business may be continued by the survivor, the estate must pay for such additional services. Or, where without such consent, and at his own risk, the suryivor continues the business and makes a profit, the estate is bound to allow reasonable compensation if it elects to share in the gains thus made.

So where a member of a firm, by his voluntary act, dissolved the partnership the partner who continued the business was allowed compensation for performing services in which he had the right to have expected the continued assistance of the other. Extra compensation has. also been allowed in a few cases where, in order to realize on the assets, it was absolutely necessary for the survivor to continue the business beyond the reasonable time allowed for winding up its affairs. See Justice v. Lairy, 19 Ind. App. 272 ; Zell’s Appeal, 126 Pa. St. 329 ; Schenkl v. Dana, 118 Massachusetts, 236; Gray v. Hamil, 82 Georgia, 375; Beatty v. Wray, 19 Pa. St. 516 ; Cameron v. Francisco,

This point is not involved and on it no ruling is made, because we are not dealing with questions between the administrator of the deceased and the surviving member of an ordinary law partnership, where the latter conducts to a conclusion the business of the firm, under circumstance, where there may be a right from time to time to call on the client for compensation for the value of services rendered and even though the case is finally lost. Here the agreement related solely to litigation in which compensation was for success and not for the value of services rendered. Such payment was to be in solido, and the partners agreed that the fees should be divided in solido.

Moyers insists, however, that the peculiar facts of this case bring him within the other exceptions pointed out above; that when Edmonds was adjudged a lunatic, in 1891,° the firm was dissolved; that with the knowledge of Cummings, who was acting as Edmonds’ committee, Moyers continued to prosecute the claims, paid out large sums for necessary expenses, and, in spite of probable failure, rendered valuable services, which finally earned the fees now to be divided. He claims that in equity and good conscience he should be paid reasonable compensation for this work, in which Edmonds rendered no assistance.

Moyers put in his services against the claims turned over to the firm by Edmonds, who stipulated that Moyers should represent him, and to that end “be associated in the prosecution of the claims as joint attorney of record.” Edmonds rendered little or no assistance and apparently was not expected to do so, for Moyers himself testified that

Moyers was charged with interest on the balance due from September 16, 1899, when the suit was filed, being the date on which the master found, he should have accounted with the complainant. Moyers contends that what, if anything, was due was uncertain; that "it required numerous references in order to properly state the account; that it was not liquidated until the final decree in November, 1908, when, for the first time, the true balance was ascertained, and hence that interest should only run from that date. Interest is allowed by way of damages for failure to pay money when it is due and frequently is not allowed except from the time the amount to be paid has been definitely ascertained.; But there are many cases in which interest is charged from Sl prior date. Here the de

In the last assignment, it is alleged that the court erred in not dismissing the bill because of complainant’s laches in filing it. It is contended that after Cummings was appointed committee of Edmonds in 1891, he knew of the contract of special partnérship and that Moyers was prosecuting these claims, and not only made no demand for a settlement, but permitted Moyers to do all the work, incur all of the expense, and run all of the risks, without notifying him. that Edmonds’ representative would claim one-half of the profits. It is urged that such conduct was inequitable and that to wait until eight years before filing proceedings constituted laches which requires a dismissal of the bill. We find nothing in the facts or in.the relation of the parties that made it incumbent on Cummings to warn Moyers of Edmonds’ claim, even if Cummings had the full knowledge of all the facts which is necessary to raise any such obligation. Edmonds’ right was rooted in the contract, an£ has only been enforced in pursuance

The decree is

Affirmed.