Smith v. Whitman

Pattison, J., delivered the opinion of the Court. On the west side of the Chesapeake Bay, just south of the mouth of the Susquehanna River, in Harford County, Maryland, is located Spesutia Island, containing approximately 1,900 acres of land. This island was originally one farm with a single owher, but many years ago it was divided into three farms, known as the Hpper, Middle, and Lower Island Farms. ⁴⁸⁰ The Lower Island Farm, which is at the southern end of the island, consisting of about 970 acres of land, and 35 acres on the main land west of Spesutia Narrows, through which there is a private road ending at a wharf or ferry landing, which was used in reaching the island, was, in 1915, owned by one Robert H. Smith, who died in that year. By his will the lands mentioned were deyised unto Julian 0.

Smith, Chapman S. Clark, and Frederick Yon Kapff, the first two of whom are the appellants in this case, subject to the use thereof for four years from the date of his death by his daughter Nannie M. Clark, wife of Chapman S. Clark, in trust to. divide, apportion and assign, pay over and convey to the beneficiaries named in his will. On October 6th, 1917, the Congress of the United States passed an act providing for the purchase of a proving ground "and the payment of damages and losses resulting from the taking of all land for such purpose, and on the 16th day of October, 1917, pursuant to said act, the President of the United States issued a proclamation declaring certain lands in Harford County, Maryland, including the lands devised to said trustees, to be necessary for the’ establishment of a proving ground. This proclamation contained a provision that possession and title to all lands embraced therein, including all easements, rights of way, etc.,, that could not be procured by purchase on or before October 20th, 1917, might immediately thereafter be taken on behalf of the United States by the Secretary of War or his duly accredited representatives. Thereafter officers of the United States Army went upon the island, and told its owners that the Government of the United States had taken over the-island, and ordered them to vacate the same and deliver possession thereof to the United States on or before December 1st, 1917, which order was accepted by them.

Thereafter, on the 14th day of December, 1917, the President of the United States issued a second proclamation, which, as therein stated, superseded the prior proclamation of October 16th, 1917, and all provisions of the prior proclamation that were inconsistent with the latter were thereby revoked: ■ The lands taken over by the last proclamation did' ⁴⁸¹ not include any part of the Lower Island Farm on Spesutia Island, but did include the main land terminal of the ferry, consisting of said thirty-five acres, with the road passing through it, which was the main means of ingress and egress, other than by water, to and from the island. Immediately after taking over said lands, the owners of the Lower Island Farm were refused the right to use the private road within the limits of the proving ground, except at the will and by the permission of those in authority at the proving ground, and, when permitted, they were to use it under the severest restrictions, including an inspection of their baggage, packages, etc., by the government officials. In the year 1918, Spesutia Narrows and a part of Spesutia Island, including a large part of the Lower Island Farm, were declared to be in the danger zone from gun and aerial bombs from the United States Proving Ground, and the public, including the plaintiffs, were warned not to enter that zone, and from time to time the officers of the United States Army fired shells from anti air craft guns, several of which burst on said land. One of these shells burst very close to the front porch of the house occupied by Mrs. Clark and her family.

There were, in addition thereto, other acts of the government which interfered with the owners’ free and full use and enjoyment of the Lower Island Farm. After the issuance of the proclamation of December 14th, 1917, which by its terms did not include the land upon the island, the trustees of Hobert H. Smith sold all the Lower Island Farm on Spesutia Island for $50,000. Five hundred •acres of it, consisting of marsh lands, were sold to Converse and Monnell for $35,000, and the remainder, 470 acres, upon which the buildings and improvements were located, were sold to Nannie M. Clark for $15,000; and thereafter, on May 17th, 1926, Mrs. Clark sold 162.5 acres of it to Arthur H. Stump for $9,200, leaving Mrs. Clark the owner of approximately 307.5 acres, upon which the buildings were located, which she, on June 1st, 1929, sold for $90,000. ⁴⁸² The President of the United States, acting through the Aberdeen Proving Ground Land Purchasing Commission, on Pebruary 14th, 1918, made an award of compensation of $3,000 for the aforesaid taking of the thirty-five acres tract, which amount was unsatisfactory to the trustees, and no compensation was paid to them. About this time, the trustees of Robert H. Smith sought and obtained the services "of Mr. Stevenson A. Williams, a prominent attorney of Bel Air, in an effort to obtain from the government what they thought was a just compensation for the taking of the thirty-five acres upon the mainland, and the damages resulting therefrom to their land upon the island, or if it should be found that, by the acts of the government, there had also been a taking of their land upon the island, then to obtain just compensation for the taking of that land.

Thereafter Horace S. Whitman, an attorney of Washington, D. C., the other appellee in this case, was employed to serve with Mr. Williams in an effort to obtain such compensation for the trustees, and, not being able to effect a satisfactory settlement with the government, they brought suit against the United States in the United States Court of Claims for the recovery of said compensation, which was prosecuted to a successful conclusion, whereby the defendant received from the government $63,500, with'interest thereon at six per cent, per annum from December 14th, 1911, to Pebruary "14th, 1918, together with interest on a part thereon, $61,250, from Pebruary 4th, 1918 (date of award), until paid, which interest amounted at the time of its payment to $42,512.29; making the total amount received by the trustees $106,012.29. Of the $63,500 awarded to the trustees, $15,-000 was for the taking of the thirty-five acres of the mainland, and $48,500 as damages to the remainder of their land xxpon the island, resxxlting from the taking of the thirty-five acres. The voucher for the compensation awarded, $106,012, was made payable to the trustees, and, when it came to a settlement with the attorneys for their services, there was a disagreement as to the amount owing them, which it seems they ⁴⁸³ were unable to reconcile. Whereupon the sum of $20,624.93 was paid to the attorneys, Messrs.

Williams and Whitman, and the balance which they claimed was owing them, $13,-561.25, "was by agreement “deposited in bank in escrow” sobject to joint order of the trustees and Messrs. Williams and "Whitman, until such time as the court might decide what additional amount the said attorneys were entitled to receive for their services. ' The attorneys, Messrs. Williams and Whitman, thereupon, on the 7th day of November, 1929, brought suit against the trustees for the balance of the fee claimed to be owing them, then on deposit in bank. The declaration contains four of the common counts and one special count in which it was alleged that the defendants employed them to prosecute and collect their above mentioned claim against the United States, “and agreed with the plaintiff's, in consideration of such services to pay them ■* * * a fee or compensation therefor equal to onetliird of the amount which they as attorneys might recover for said estate from the United States, after deducting the amount of the original award to the said trustees made by the commission, appointed by the President and War Department. for the purpose of valuing the lands taken for the Aberdeen Proving Ground, * * * and the plaintiffs accepted the said employment upon the said terms and endeavored, for a long period of time, to negotiate a settlement for said claim with the War Department, but failing in said effort and with the approval of the defendants, brought suit against the said United States in the United States Court of Claims * * * and rendered all necessary and proper services in the conduct of said suit, and thereby recovered the sum of $106,-072.29, and collected the said sum of money by a voucher or check of the Treasury Department of the United States drawn to the order of the defendants, and delivered said voucher to the defendants, who received the money therefor, whereby the defendants as the representatives of said estate, became indebted to the plaintiffs to an amount equal to one-third of the amount so recovered as aforesaid, but the defendants refused and declined to pay the plaintiffs the said amount so ⁴⁸⁴ agreed to be paid them and still refused to pay the same, though requested so to do.” The general issue pleas were filed by the defendants and issues were joined thereon by the plaintiffs.

The case was tried upon the issues so framed, and a verdict was rendered thereon in favor of the plaintiffs for the sum of $13,561.25, and a judgment was entered upon the verdict. It is from that judgment this appeal was taken. In the trial of the ease thirty-one exceptions were reserved; (¡f these, thirty were to the rulings of the court on the evidence, and one to its rulings on the prayers. The plaintiffs offered six and the defendants nine prayers, all of which were refused except the first prayer of the plaintiffs.

Special exceptions were filed to this granted prayer of the plaintiffs, but were overruled. The granted prayer of the. plaintiffs which, in effect, directed a -verdict for the plaintiffs, is as follows: “The uncontradicted evidence in this case shows that the defendants employed the plaintiffs as their attorneys to prosecute the claim referred to in the evidence, and undertook and promised to pay the plaintiffs for their services in that behalf, an amount equal to one-third (1/3) of the amount they might recover for the defendants, less the sum of three thousand dollars ($3,000) which had been awarded to the defendants by the Aberdeen Proving Ground Land Commission, and that the plaintiffs prosecuted said claim to a successful conclusion, whereby there was recovered by the defendants the sum of $106,072.29 and thereby the plaintiffs became entitled to receive from the defendants the sum of $34,186.18, being one-third (1/3) of the total award of $106,072.29, after deducting therefrom the amount of said award of $3,000, with proper interest thereon, amounting to $3,513.75, whereof the defendants paid to the plaintiffs the sum of $20,624.93, and there remains due and owing to the plaintiffs under the aforesaid agreement the sum shown by the agreement of July 20, 1929, offered in evidence, and which was deposited in escrow under said agreement; and therefore, the court directs the jury to find their verdict in favor of the plaintiffs for the said amount as shown by said agreement to which amount the ⁴⁸⁵ jury may in their discretion add interest from the 20th day of July, 1929.” It is urged hy the appellants that the court, in granting the plaintiffs’ first prayer, erred in not requiring the jury to find the facts therein stated upon which it based its direction to the jury to return a verdict in favor of the plaintiffs. In the early case of Charleston Ins. Co. v. Corner, 2 Gill, 426 , where the facts proven were uncontradicted, and in which was granted an instruction similar in character to the prayer granted in this case, the court said: “Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury or the circumstance that it is all on one side, does not authorize the court to direct the jury, that it proves the fact.

They have the power to refuse their credit, and no action of the court should- control the exercise of their admitted right, to weigh the credibility of