Folck v. Smith

Bartol, J., delivered the opinion of this court. This suit was brought by the appellants, to recover from the appellee three-fourths of the commissions, awarded to him as trustee for the sale of the real estate of John Folck deceased. The declaration contains only the common money counts, and an insimul computassent; and the defendant pleaded the general issue. To support the action the plaintiff offered in evidence the following agreement, which was admitted to have been executed by the defendant: “Cumberland, June 14th, 1841. “Messrs.

Daniel aud John Folck, have this day requested me to file a bill in Allegany county court as a court of equity, for ⁸⁹ the sale of the real estate of their father, and I have agreed to do the same, and to obtain a decree for the sale of the same-; 'with the understanding that I shall be appointed trustee to make said sale, with the further understanding and agreement, that after the sale is made, I will retain in my hands only one-fourth of the usual commissions allowed in such cases, and will pay over to the said John and Daniel Folck, the remaining three-fourths of the commissions awarded to me by Allegany county court, fox making said sale. Í further agree to attend to the business of the personal estate of John Folck, (deceased,) for the said Daniel and John Folclr, as the administrators of said estate, without any additional charge, besides the one-fourth of the commissions arising from the sale of the real estate aforesaid. James Smith.” The proof in the cause and the admissions of the parties, show that the plaintiffs were the sons, and two oF the heirs at law, of John Folck deceased, and were also the administrators rtf his personal estate. The defendant was at the time a member of the bar of Allegany county court, and it -was and liad been for some time the practice of said court in passing a decree for the sale of real estate, to appoint the solicitor who filed the bill a trustee to make such sale; unless objection was made to the appointment of such solicitor, or some other person was recommended by those in interest, ft further appears, that the defendant filed the bill, conducted all the proceedings in the chancery cause, procured the decree for the sale of the land, and was by the decree appointed trustee to sell the same; that he sold the property under the decree, and was allowed for his commissions the sum of $634.,20. It appears also that he acted as attorney and solicitor for the plaintiffs, as administrators; and that he was not to receive, and did not receive, any compensation from the plaintiffs, or from any other person,, for any of his services, other than is provided in the said agreement of the Mill June 1841.

Upon this