Barry v. Carroll

Adkins, J., delivered the opinion of the Court. This appeal is from an order of court ratifying an audit to which exceptions had been tiled because of the allowance of a counsel fee of one hundred dollars, to solicitors for apu pellees. The propriety of the allowance of the fee is the sole question in the case. Appellees were plaintiffs in a partition suit for the sale of a, farm owned by them and others as. tenants in common.

The other co-tenants, including appellant, were made defendants-. The bill of complaint alleged that the said x’eal estate was not susceptible of division between the parties in interest, and contained the other usual allegations, and asked for the appointment.' of trustees to sell. Appellant and one other defendant, answered by solicitors, admitting the facts alleged and consenting to the passage of a decree- as prayed. A decree pro confesso was- taken against the -other defendants, and in due course a final decree was passed appointing Alan Bowie, one of the solicitors, for plaintiffs, and Trank M. Stephen, one of defendants’ solicitors, trustees to. make the sale.

The farm was offered at public sale and withdrawn for want of bidders. Subsequently an offer of $2,500 was made by Charles B. Duckett and accepted, axxd this sale was reported by the trustees, who asked for the confirmation of the- sale. Exceptions, however, were filed by all the parties in interest, except appellant, on the ground, among others, of inadequacy of price-. Mr. Roberts- appeared as solicitor for exceptants.

The court allowed exceptants ten days to show an offer substantially increasing the price. Thereafter one of the defendants offered $2,800, and subsequently Charles B. Duckett raised his bid to $3,000, which was- accepted on the recommendation of the trustees, in which all the parties ⁶⁹⁰ in interest united except appellant, and the sale was finally ratified. It appears that Mr. Roberts, one of appellees’ solicitors, was active in preventing the ratification of the sale first reported, and in securing the higher bids, and it also appeal's, from the argument of counsel and from the expressions of the court in the order ratifying the audit, that it was for such services mainly that the fee was asked and allowed. Indeed the learned judge who signed the order was careful to say: “But this order is not to be construed as establishing a precedent for the allowance of attorney’s fees in oases somewhat similar to this.” The main objection urged in argument by counsel for appellant was that appellant was in no way responsible for the employment of appellees’ solicitors, had no contract with them, and therefore ought not to be charged with any part of their fee; especially as she was represented by her own counsel, whom she would have to pay for their services.

The general rule, of course, is “that before a legal charge can be sustained there must he a contract of employment, either'expressly made or superinduced by the law upon the facts of the case. McGraw v. Canton, 74 Md. 559”; and “unless such contract, express or implied, can he established the party who engages counsel must pay for his services.” Lyon v. Hires, 91 Md. at page 418. “When compensation is allowed out of a common fund for expenses incurred and services rendered on behalf of the common interest, it is upon the principle of representation or agency. * * * Such charges are allowed not simply and alone because