8 S.Ct.

1217
127 U.S. 235
32 L.Ed. 112

PORTER
v.
WHITE.
April 30, 1888.

S. S. Henkle, J. J. Johnson, and Wm. E. Earle, for appellant.

This is a bill in equity, filed in the supreme court of the District of Columbia, by
Richard H. Porter against Stephen V. White. The case arises as follows: On the
4th of July, 1868, a convention was concluded between the United States and
Mexico, (15 St. 679,) providing for the adjustment of the claims of citizens of
either country against the other, under which all claims on the part of citizens of
either country upon the other, arising from injuries to their persons or property
by the authorities of the other, which might have been presented to either
government for its interposition with the other, since the signature of the treaty
of Guadalupe Hidalgo, of 1848, and which yet remained unsettled, as well as
any other such claims which might be presented within the time specified in the
convention, (but not covering any claim arising out of a transaction of a date
prior to February 2, 1848,) were referred to two commissioners, one to be
appointed by each government, and the two commissioners to appoint an
umpire to act in cases on which they might themselves differ in opinion. The
decision on each claim was to be given in writing, and to designate whether any
sum which might be allowed should be payable in gold or in the currency of the
United States. It was provided in the convention that each government engaged
'to consider the decision of the commissioners conjointly, or of the umpire, as
the case may be, as absolutely final and conclusive upon each claim decided
upon by them or him, respectively, and to give full effect to such decisions
without any objection, evasion, or delay whatsoever.' It was further provided
that the total amount awarded in all the cases decided in favor of the citizens of
one government should be deducted from the total amount awarded to the

citizens of the other, and the balance, to the amount of $300,000, should be
paid at the city of Mexico, or at the city of Washington, in gold or its
equivalent, within 12 months from the close of the commission, to the
government in favor of whose citizens the greater amount might have been
awarded, without interest or any other deduction h an that specified in article 6
of the convention; and that the residue of such balance should be paid in annual
installments, to an amount not exceeding $300,000, in gold or its equivalent, in
any one year, until the whole should have been paid. Article 6 provided for the
compensation of the commissioners, the umpire, and the secretaries, and
provided that the whole expenses of the commission, including contingent
expenses, should be defrayed by a ratable deduction on the amount of the sums
awarded by the commission, provided that such deduction should not exceed 5
per cent. on the sums so awarded, and that the deficiency, if any, should be
defrayed in moieties by the two governments. By successive conventions, (17
St. 861; 18 St. 760, 833,) the duration of the commission, which had been
originally limited to two years and six months from the day of the first meeting
of the commissioners, was extended until the 31st of January, 1876; and, by a
convention concluded April 29, 1876, (19 St. 642,) the time for decision by the
umpire was extended until the 20th of November, 1876.
2

By an act of congress passed June 18, 1878, c. 262, (20 St. 144,) entitled 'An
act to provide for the distribution of the awards made under the convention
between the United States of America and the republic of Mexico, concluded
on the 4th day of July, 1868,' it was provided (section 1) as follows: 'That the
secretary of state be, and he is hereby, authorized and required to receive any
and all moneys which may be paid by the Mexican republic under and in
pursuance of the conventions between the United States and the Mexican
republic for the adjustment of claims, concluded July fourth, eighteen hundred
and sixty-eight, and April twenty-ninth, eighteen hundred and seventy-six; and
whenever, and as often as, any installments shall have been paid by the
Mexican republic on account of said awards, to distribute the moneys so
received in ratable proportions among the corporations, companies, or private
individuals, respectively, in whose favor awards have been made by said
commissioners, or by the umpires, or to their legal representatives or assigns,
except as in this act otherwise limited or provided, according to the proportion
which their respective awards shall bear to the whole amount of such moneys
then held by him, and to pay the same, without other charge or deduction than
is hereinafter provided, to the parties respectively entitled thereto. And in
making such distribution and payment, due regard shall be had to the value at
the time of such distribution of the respective currencies in which the said
awards are made payable; and the proportionate amount of any award of which
by its terms the United States is entitled to retain a part, shall be deducted from

the payment to be made on such award, and shall be paid into the treasury of
the United States as a part of the unappropriated money in the treasury.'
Sections 3 and 4 of the same act provided as follows: 'Sec. 3. That out of the
payments and installments received from Mexico, as aforesaid, on account of
said awards, and out of the moneys which shall be received by the secretary of
state under the provisions of this act, the secretary of state shall, when and as
the same shall be received and paid, and before any payment to claimants,
deduct therefrom and retain a sum not to exceed five per centum of said moneys
awarded to citizens of the United States, until the aggregate of the amounts so
deducted and retained shall equal the sum of one hundred and fourteen
thousand nine hundred and forty-eight dollars and seventy-four cents, being the
amount of the expenses of the commission, including contingent expenses paid
by the United States in accordance with article six of the treaty, as ascertained
and determined in pursuance of the provisions of the said treaty; which said
sums, when and as the same are deducted and retained, shall be, by the
secretary of state, transmitted to the secretary of the treasury, and passed to h e
account of, and be regarded as, unappropriated money in the treasury. Sec. 4.
That in the payment of money, in virtue of this act, to any corporation,
company, or private individual, the secretary of state shall first deduct and
retain or make reservation of such sums of money, if any, as may be due to the
United States from any corporation, company, or private individual in whose
favor awards shall have been made under the said convention.'
3

Among the awards made by the commission was one to the legal
representatives of Austin M. Standish, of $42,486.30; one to the legal
representatives of Monroe M. Parsons, of $50,828.76; and one to the legal
representatives of Aaron A. Conrow, of $50,497.26; those three persons having
been citizens of the United States who were unlawfully killed in Mexico, in
1865, by the Mexican authorities. The awards were made in 1874 or 1875. The
bill avers that, in 1869 or 1870, the plaintiff was authorized by powers of
attorney from the legal representatives of Standish, Parsons, and Conrow to
prosecute their claims for such unlawful killing, before the commission; that
the powers of attorney to the plaintiff stipulated that he should be entitled, as
compensation for his services and expenses in the prosecution of the claims, to
one-half of whatever sums might be awarded by the commission to such legal
representatives; that he prosecuted the cases with success, and paid or assumed
to pay all the necessary expenses thereof; that, by virtue of his contract, he
became entitled to the one-half of the sums awarded, and the legal
representatives of the parties recognized his right to such moieties, and
respectively claimed for themselves only the one-half of the awards; that there
was, at the time of the filing of the bill, in December, 1880, in the custody of
the secretary of state of the United States, something over $20,000 applicable to

the moieties of the plaintiff upon the three awards, and the secretary was ready
and willing to pay the same whenever it should be determined who was entitled
thereto; that the plaintiff had, in 1876, borrowed from the defendant $5,000,
and given him, as security, a lien upon the moiety of the plaintiff in the Parsons
award, and a power of attorney to collect such moiety; that, in 1877, he
borrowed from the defendant $2,500 more, and executed to him an absolute
assignment of the plaintiff's moiety of the Standish award, with the agreement
that, although such assignment was absolute in form, it was to be simply a
security for the money borrowed, and for services to be performed by the
defendant in collecting the moieties for the plaintiff; that the secretary of state
had refused to pay the plaintiff his interest in the awards until the rights of
certain parties, who had filed claims with the secretary upon the plaintiff's
interest in the fund, should be settled; that the defendant represented to the
plaintiff that he (the defendant) could procure the payment of his interest in the
awards, if the plaintiff would authorize him to do so, and that, believing such
representation, he gave to the defendant 'power of attorney to collect not only
the Standish and Parsons cases, which had been assigned to him, but gave him
also the said Conrow case, in which the defendant had no interest whatever;'
that the defendant was now claiming that he was the absolute owner of the two
moieties in the cases of Parsons and Standish, while his only real claim upon
the same was on account of his loan of the $7,500; that the defendant also
refused to recognize the right of the plaintiff to the moiety of the Conrow
claim, falsely alleging that he had purchased the plaintiff's interest therein from
one Richard H. Musser, who set up a false claim to the one-half of the
plaintiff's moiety of the Conrow claim; that the secretary had decided that none
of the claimants had any lien upon the fund except the plaintiff and the
defendant, and was ready and willing to pay the amount which was in his
control, applicable to the tr ee moieties, upon the joint receipt of the plaintiff
and the defendant; and that, inasmuch as she defendant held absolute
assignments for the Persons and Standish cases, the secretary would not
undertake to decide the rights between the plaintiff and the defendant, but left
them to settle their controversy by adjustment, or by the determination of a
court of competent jurisdiction. The bill waives an answer on oath, and prays
for a decree that the defendant holds the assignment of the plaintiff's moieties
in the cases of Standish and Parsons as security for the plaintiff's indebtedness
to him for money borrowed, and for no other purpose, and in no other right;
that he may be ordered to cancel the moieties or reassign them to the plaintiff,
upon the payment to him by the plaintiff of the amount of money, with interest,
which the court may find that she plaintiff owes to him; and that he may be
decreed to empower the plaintiff to collect from the secretary the amount of the
installments in his hands, applicable to all three of the cases. The bill also prays
for such other and further relief as may be necessary.

A demurrer to the bill was overruled, and the defendant put in an answer. The
substance of the answer is that in 1869 or 1870 the legal representatives or next
of kin of the three persons referred to made written executory contracts with
Musser, whereby he undertook to furnish the necessary money and do the
necessary legal work to establish the claims, and the claimants undertook, on
such services and money being furnished, to pay him a fee which should equal
the moiety of any award in the premises, in each case; that, in pursuance of such
contracts, the claimants executed powers of attorney, whereby Musser was
constituted attorney in fact, irrevocable, with a statement that the power of
attorney was coupled with an interest; that, about that time, there was a verbal
contract made between Musser and the plaintiff, whereby it was agreed that the
plaintiff should furnish the money and Musser should do the legal work, and
the two should divide the fees of Musser under the contract; that the plaintiff
failed to furnish the money to carry on the suits, and undertook to dismiss
Musser from the cases, leaving Musser with the responsibility of furnishing
money and doing the legal work; that, in the discharge of his duties under his
agreements with the claimants, Musser retained the legal firm of Pike &
Johnson, and the claimants agreed in writing that that firm should receive 25
per cent. of the resulting awards, to be taken from Musser's moiety; that, on the
making of the awards; the several claimants executed assignments to Musser
and Pike & Johnson for a moiety; of each of the awards; and that, on the 12th of
February, 1879, Musser and Pike & Johnson, for the consideration of $30,000,
sold and assigned such moiety to the defendant in his own right. There are other
allegations in the answer, which it is unnecessary to set forth, in the view we
take of the case.

A replication was put in to the answer, and proofs were taken on both sides.
The court in special term, in February, 1883, made a decree as follows: 'The
court finds that the plaintiff is entitled to the one full, equal half of the
attorneys' fees in the awards against Mexico by the joint United States and
Mexican commission in the case of Mary Ann Conrow, referred to in the bill
and proceedings in this case, and the defendant is entitled to the other half. It
appearing to the court that the defendant White has been recognized by the state
department as entitled to the whole of the said attorneys' fees in said award, and
that he has already been paid by the state department, from the installments
heretofore paid by Mexico upon said award, the following sums, at the times
following, to-wit, on the 5th day of May, 1881, 8,896.81; on the 11th day of
April, 1882, $1,806.06; and that there is now on hand in the state department
the sum of $1,806.06, applicable to said attorney's fee in said Conrow case, and
that thr e are seven more annual installments to be paid by Mexico upon said
award,it is, this 27th day of February, 1883, ordered, adjudged, and decreed
that the said defendant do, within five days from this date, pay to the solicitors

of said complainant Porter the one-half the said sums by him heretofore
received upon said awards, with interest thereon at the rate of six per cent. per
annum from the times of payment to him as aforesaid, to-wit, $4,448.41, with
interest from the 5th day of May, 1881, and $903.03, with interest thereon from
the 11th day of April, 1882; that said defendant assign and transfer to the
plaintiff, by such form of conveyance as will be recognized by the state
department, the one equal half of the payments yet to be made by Mexico upon
said award applicable to attorney's fee, including the amount now in said
department applicable to said purpose, and that the defendant pay the costs of
this suit within ten days, or that in default thereof, as well as in default of the
payment of the amount found due to the said Porter, execution do issue
therefor, as upon judgment at law.'
6

This decree was a decision in favor of the plaintiff in regard to the Conrow
award only. It did not grant the relief prayed by the bill in respect to the Parsons
and Standish awards, and decreed nothing in favor of the plaintiff in regard to
those awards. There is nothing in the record to show that either party appealed
to the general term of the court; but there appears in the record a decree of the
court in general term, made December 24, 1883, which reads as follows: 'This
cause came on to be heard at this term, and was argued by counsel; and
thereupon, on this 24th day of December, A. D. 1883, upon consideration
thereof, it is found by the court that the equities thereof are with the defendant,
and that the respective awards of S. Kearney Parsons against Mexico and
Mildred Standish against Mexico were not assigned and delivered by the
plaintiff to the defendant as security for the return of money, and that the
plaintiff is not the assignee of any portion of the award of Mary Ann Conrow
against Mexico, but that the defendant, Stephen V. White, is the assignee in his
own right of a moiety of each of the said three awards; wherefore it is ordered,
adjudged, and decreed by the court that the judgment and decree heretofore
entered in favor of plaintiff against the defendant on Febuary 27, 1883, in the
special term, be, and the same is hereby, vacated, annulled, and held for
naught, and the bill herein is dismissed, and that the defendant, Stephen V.
White, do have and recover of the plaintiff, Richard H. Porter, his costs herein
expended, taxed at $_____, and that he have execution therefor as in a suit of
law, and to said order the plaintiff prays and appeal to the supreme court of the
United States, which is allowed.' Although the plaintiff has appealed from the
whole of the decree of the court in general term, it is stated in the brief of his
counsel that he did not appeal from the decree of the court in special term, and
is therefore concluded by the failure of that decree to award relief to him in
respect to the Parsons and Standish claims; and that the dispute in this court is
limited to his right to one-half of the fees in the Conrow case. Therefore,
although the decree of the court in general term finds that the awards in favor of

the Parsons and Standish claims were not assigned and delivered by the
plaintiff to the defendant as security for the return of money, and although that
decree further finds that the defendant is the assignee in his own right of a
moiety of each of those two awards, as well as of a moiety of the Conrow
award, and although the plaintiff appeals generally from that decree, no
question arises in this court as to any claim of the plaintiff to any share of the
Parsons and Standish awards, but the only portion of the decree of the court in
general term drawn in question is that which declares that the plaintiff is not
thea ssignee of any portion of the Conrow award, but that the defendant is the
assignee in his own right of a moiety of that award.
7

The claim of Porter in respect to the Conrow award is based upon the
contention that he procured Musser to obtain, for a compensation to be paid to
him by the plaintiff, powers of attorney from the legal representatives of the
three men who had been killed, to prosecute the claims,the powers of
attorney and contracts to contain the plaintiff's name as attorney in fact, with a
power of substitution; that Musser procured the powers of attorney, and
contracts in writing, in each of the cases, for one-half of the recovery as a fee,
but procured the name of Musser to be inserted as attorney, instead of that of
the plaintiff; that, on the plaintiff's complaint of this, Musser substituted the
plaintiff as attorney in each of the three cases, by an indorsement on the power
of attorney itself; that the legal effect of those substitutions was to make the
plaintiff the attorney in all three of the cases, instead of Musser; that, under
these substitutions, the plaintiff employed attorneys in Washington, who with
him prosecuted the cases to success, Musser aiding in taking testimony; that the
plaintiff paid Musser in full for all his services; that Musser had no interest in
the fees secured under the contracts with the claimants; and that Musser
disputed this and, in 1872, employed the firm of Pike & Johnson, after the
evidence in the cases had been closed, and the printed arguments had been
filed, and the cases were awaiting a hearing.

It is further urged, on the part of the plaintiff, that it is admitted in the answer
of the defendant that there was a verbal contract between Musser and the
plaintiff that the plaintiff should furnish the money and Musser should do the
legal work, and that the two should divide the fees of Musser under the contract
with the claimants; and much stress is laid upon the decision of this court in
Peugh v. Porter, 112 U. S. 737, 5 Sup. Ct. Rep. 361, made January 5, 1885,
after the decree of the court in general term in this suit, in which it is said that
the agreement between Musser and Porter was 'that each should have an equal
interest in the prosecution and proceeds of the claims in case of recovery;' and
upon the fact that White was a party to that suit. But there is no evidence in the
case that Porter had any assignment in writing of any interest in the Conrow

award, or any written instrument creating any lien upon it, or its proceeds, by
way of fee or otherwise from either the claimants of that award or from Musser.
The power of attorney from the widow of Conrow to Musser, dated December
10, 1869, contains no assignment of any specific interest in the claim, and the
substitution of Porter by Musser, indorsed on such power of attorney, and dated
July 4, 1870, only states that 'Richard H. Porter is substituted and authorized to
act under the powers hereinabove given.' Under these views, the plaintiff has
failed to establish and equitable lien on the Conrow fund, by showing any
distinct appropriation of a part of that fund in his favor by the widow of
Conrow, either directly or indirectly, or any agreement, direct or indirect, that
the plaintiff should be paid out of that fund. Wright v. Ellison, 1 Wall. 16; Trist
v. Child, 21 Wall. 441, 447; Peugh v. Porter, 112 U. S. 737, 742, 5 Sup. Ct.
Rep. 361. On the contrary, the evidence shows that the widow of Conrow,
recognizing her agreement with Musser that he should have as compensation
one-half of the money which should be awarded to her on the claim, executed,
on the 28th of March, 1872, a written power of attorney to the firm of Pike &
Johnson to prosecute her claim, which power revoked all prior powers executed
by her in that behalf, a like power being executed at the same time by the son of
the deceased Conrow; that Mrs. Conrow at that time agreed with Musser and
the firm of Pike & Johnson that that firm and Musser should have, between
them, as compensation, the one-half of whatever should be awarded to her on
the claim; that, on the 19th of December, 1878, she made a written request to
the secretary of state to pay one-half of the award to herself, one-fourth of it to
Musser, and one-fourth of it to the firm of Pike & Johnson; and that, on the 12th
of February, 1879, Musser and the firm of Pike & Johnson, by a written
instrument executed by them, assigned to the defendant all their interest in the
Conrow claim, the award on that claim having been made to Mrs. Conrow. It is
very clear that the plaintiff has no title to any relief against the defendant,
whatever he may have against Musser, who is not a party to this suit. There is
nothing in the case of Peugh v. Porter which can affect the claim of the
plaintiff against the defendant. The decree of the court below in general term is
affirmed.