Summary
The court affirmed dismissal of an attorney's suit to recover shares of stock and dividends, holding that the attorney was merely an agent with a bare power, not an agent coupled with an interest, and therefore lacked standing to sue as the real party in interest. The court also held that a contingent fee contract did not create an equitable assignment or a present interest in the property.
Topics
Practice areas
Questions Presented
- Whether appellant could join appellee Braun as a party plaintiff against her will
- Whether the trial judge had power to review a decision of the original trial judge
- Whether appellant could bring suit in his own name
- Whether the shares were effectively vested in the Canadian Custodian of Enemy Property
- Whether such vesting barred the alleged right to transfer and dividends
Holdings
- Appellant had no right to maintain the action in his own name or jointly with Mary A. Braun, because his contingent fee contract did not create an interest in the subject matter sufficient to survive the client's death; he was merely an agent with a bare power, which is revoked by death.
Key quotations
“We hold it to be clear, that the interest which can protect a power, after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. * * * 'A power coupled with an interest,' is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But if we are to understand by the word 'interest,' an interest in that which is to be produced by the exercise of the power, then they are never .united. The power, to produce the interest, must be exercised, and by its exercise, is extinguished. The power ceases, when the interest commences, and therefore, cannot * * * be said to be 'coupled' with it.” (at 838)
“An agreement to pay a certain sum out of that which one is entitled to receive ' * does not operate as a legal or equitable assignment, since the assignor in either case retains control of the subject-matter.” (at 839)
Factual background
Lewis entered into agreements with Braun to recover shares of stock and dividends. Braun died, and Lewis sought to maintain an action in his own name or jointly with Braun's widow. The agreements provided for a contingent fee but did not convey any interest in the shares or dividends. The court found that Lewis was merely an agent with a bare power, which terminated upon Braun's death.
Procedural history
The original trial judge withdrew due to illness, and a subsequent judge reviewed the case and dismissed the suit. Lewis appealed.