rights of the Pine Mountain Iron & Coal Company in respect to these lands. It seems to be admitted that at this time no consideration for that mortgage was paid by the trust company to Blake, and, of course, if there was sufficient notice, it would be in season if given before the consideration was paid upon the mortgage. The testimony shows that Blake did not receive the consideration for this mortgage until the 10th of January, 1893, and that shortly prior to that time Mr. Woodman, who was trust agent and director of the trust company, conferred with Charles M. Bailey by letter, making an offer on behalf of the trust company to sell this mortgage to him. The testimony shows that for some years previously Mr. Bailey had been making loans in the state of Minnesota, and purchasing mortgages and securities of that kind, and that Mr. Woodman had, to a certain extent at least, acted as his agent in many of these transactions; that he had other agents, at St. Paul, who were interested in the like business. It appears that the relations between himself and Mr. Woodman were confidential; that Bailey entrusted a great deal to Mr. Woodman's probity and judgment in relation to questions of value and of the titles of the property upon which he made loans; and I am inclined to think, under the law in respect to principal and agent, that, with reference to any transaction of that kind in which Mr. Woodman had no personal interest, the knowledge which Mr. Woodman would acquire in a transaction, or knowledge of facts which he had previously acquired, and which were present in his mind at the time of the transaction, it would be his duty to apprise Mr. Bailey of, and the law would conclusively presume that he did so apprise him, and such knowledge would be imputed to Mr. Bailey. The exception is in cases where the agent is himself interested in the transaction, and holds a position which is in that respect antagonistic to the interest of the principal. In cases of that kind the law does not impute that knowledge. He had a Now, it seems that in this case, as I said before, Mr. Woodman was the trust agent and director of the trust company. direct interest in its affairs, and a duty to perform, as trust agent and director, in the management of its affairs, and, so far as he participated in the disposing of its assets, his duty was to get as much for them as possible. It appears that to get money for that company this mortgage was formally assigned to him, and that he got money from the Flour City Bank upon his own note to the amount secured by this mortgage, and gave the bank this mortgage as collateral to his own note, and that this was the situation when the sale was finally made to Charles M. Bailey of the mortgage. Woodman wrote to Bailey, as he had been accustomed to do with reference to other matters, describing the mortgage, stating its amount, and giving his estimate of the security, and also of the financial responsibility of the maker of the note and mortgage, and advising Mr. Bailey to buy it as a safe and good investment; and upon these representations Mr. Bailey finally did purchase the mortgage upon terms that were agreed upon between himself and Mr. Woodman,-not entirely upon the terms that Mr. Woodman first offered, because he asked better terms; that is, he asked that he should have the January interest, although the transaction was not completed until the 27th of January. This Mr. Woodman did not agree to, but offered, doubtless with the assent of the trust company, to divide the commission which the trust company had received from Blake, and which altogether amounted to about $122, with Mr. Bailey in case he purchased; and this was accepted. It appears from the testimony, and it seems to be conceded, that Mr. Bailey in this transaction was personally innocent of any knowledge as to any defects in the title to this mortgage; that he bought it in entire good faith, and paid the full consideration for it. If his title is to be assailed, it must be entirely upon this imputed knowledge of Mr. Woodman as agent, and the question is whether Mr. Woodman was in such a position that his knowledge of the matter, which was complete, can be imputed to Charles M. Bailey. As I said, he was trust agent and director of the trust company. At the time when these negotiations took place it appears that he had been requested by another officer of the company, Mr. Cooke, to dispose of this very mortgage. It had, therefore, been placed in his hands to dispose of as the agent of the trust company. He had assumed the sale of that mortgage, acting as the agent of the company. It hardly seems correct to hold, under those circumstances, that he must also be treated as the agent of the buyer. It seems, further, that he was connected with it in the way I have suggested, by having had it assigned to him, so that the nominal title to the mortgage and note was in him at that time; although I am inclined to think, from all the circumstances of the case, that this was a sort of shifty proceeding upon the part of the trust company to get the money in hand at the time, and prior to making an absolute sale of the mortgage to some other person, and probably with some understanding that he was not to be considered as the absolute holder, and the trust company as having nothing further to do with it. But it enabled the trust company to get the money, for it appears that Woodman turned the money over to the trust company when he got it from the bank. The title, therefore, of this property that he was selling to Bailey, was nominally in himself, although it was really the title of the trust company. Under his authority to sell it, he did more than to bring the parties together to allow them to trade with each other. He negotiated the terms of the sale himself, and himself agreed to give up half of the commission, though with the assent of the trust company. I am inclined to think his connection with the trust company and with the mortgage was such that he would be necessarily interested in protecting the trust company, and in representing the mortgage which it had for sale to be valuable, and to conceal whatever would make it unsalable; and that, under the circumstances, there is no inference that he would disclose a defect to a purchaser to whom he was anxious to sell, especially in the case of a defect which he himself did not really deem a substantial de fect, so that he would consider himself as acting dishonestly in failing to disclose it, but still a defect which he would naturally regard as likely to deter as cautious a man as Bailey from buying the mortgage if it had been disclosed. I think, on the whole case, that the defendant is entitled to a decree dismissing the bill, with costs. SCHWIETER GREEFF et al. v. MILLER. FLEITMAN et al. v. SAME. (Circuit Court, S. D. New York. May 2, 1898.) Nos. 3,500, 3,573, 3,503, 3,666. 1. ATTORNEYS-COMPENSATION-AMOUNT-EXPERT TESTIMONY. Where it is the custom for attorneys to take cases on a contingent basis, paying expenses themselves, and to add a percentage to their normal charges to cover the consequent risk of loss, the court, in determining the amount which it will allow as attorney's fees in a particular case, should consider. expert testimony in the light of the fact that no such risk exists under the circumstances. 2. SAME-TEST CASES-APPORTIONMENT. Where there are a number of cases, all presenting practically the same questions of law and fact, and certain ones are selected for trial as test cases, the amount allowed by the court to attorneys, for disbursements and professional services in the preparation and trial of such test cases, should be charged pro rata against the whole number of cases, since all are benefited equally by such services. These causes were heard on exceptions to the referee's report as to the amount due the attorneys and counsel on the basis of a quantum meruit for professional services rendered. Benjamin Barker, Jr., for the motion. LACOMBE, Circuit Judge. The successive attorneys and counsel having asked for no distribution, as between themselves, of the amount proper to be paid upon order of substitution, the question presented for consideration is much simplified. It will be disposed of as if there had been but a single attorney and a single counsel engaged for the plaintiffs during the progress of the litigation. The referee finds that a payment of $50 in each case would be full compensation to the attorneys for the professional services rendered in each of these cases. In this opinion I entirely concur. There is, it is true, a disbursement of $63 paid for chemical analysis which might properly be included among the attorneys' charges; but, inasmuch as the expense therefor was undoubtedly incurred in preparing one of the typical cases for trial, this item may be considered with the allowance for services of counsel to be hereafter discussed. The referee confined himself not only to services rendered in these cases, but to services rendered as attorney only. For that reason his report does not go far enough. It is unnecessary, however, to 87 F.-3 send the case back to him, since this court is fully advised as to all the facts. It appears that there was a group of some 40 or 50 cases (including the 4 above entitled), all involving the same questions of law and practically the same questions of fact. They were all in charge of the same attorney and counsel. From time to time a case supposed to be typical, and to present in a favorable light the propositions which plaintiffs sought to maintain, was selected for trial. This was undoubtedly the proper way in which to deal with a volume of litigation such as is presented by this group of cases. Success or failure in the test cases, of course, affected the cases not tried, and to that extent the professional work resulting in such success or failure may be considered as proportionately rendered in each case of the group. Two cases, which seem to have involved but few entries, were successively tried at circuit, the plaintiff defeated in both, and appeal never prosecuted. A third suit, known as the "Butterfield Case," was tried at circuit. Plaintiff prevailed, appeal was taken to the supreme court of the United States, and judgment affirmed. By this affirmance several of the questions arising in the case were finally disposed of favorably to the plaintiff, and by the result of such decision the plaintiffs in each of the four above-entitled actions have directly benefited. A fourth case was tried before me in October, 1888, involving some 15 or 16 entries, a verdict being rendered for the defendant. A writ of error was sued out to review this decision, but subsequently abandoned. Some effort has subsequently been made to get another test case ready for trial, but none has been tried. The question now presented is, what were the services which resulted as above indicated worth? I am familiar with the questions raised in the case tried before me. It did not take a long time, and while the facts were fresh in my mind I certified a charge in favor of the United States attorney for his services for the government on the trial of the case of $250. In the absence of any specific proof of some extraordinary expenditure to obtain evidence, I should consider $500 a fair allowance for the services of counsel upon the trial, and for the services of attorney and counsel in preparing the case for trial. The allowance of $250 for preparation for trial seems large, but it appears that part of the testimony was taken by deposition, which is always expensive. The same amount may fairly be allowed for the trial of the Butterfield Case, and for the two small actions first tried $350 each should be sufficient. This would aggregate $1,700. For all services in prosecuting writs of error and arguing the case in the supreme court of the United States $1,500 would seem to be a fair remuneration. This brings the aggregate up to $3,200. For all other services of counsel, including the preparation of additional cases for trial, $1.000 would seem to be a liberal award. This makes the aggregate $4.200, and when it is considered that this sum is separate from and additional to the allowance for attorneys' services of the kind passed upon by the referee, and by him found to be worth $50 per suit, it is thought that the conclusion reached by this court is not so far away from the estimates testified to by the expert witnesses as might at first be supposed. Moreover, it must be borne in mind that all of these witnesses testify from the point of view of the practitioner in customs cases, who almost invariably finds it necessary to add a percentage to his normal charge in order to cover contingencies, since most of that business is placed in the hands of attorneys with the understanding that they are to receive nothing, and themselves bear the current expenses, unless they succeed eventually in recovering from the government. This estimate of $4,200, however, is made with no such contingency in view, since whatever proportion of it may be properly chargeable to the plaintiffs in these suits is going to be paid by them, and thus no contingency of loss exists. This $4,200, having been paid for services by which all interested benefited equally, should be distributed proportionately against the several cases. Thus, if the amount sued for in one of the cases enti tled above be $6,000, and the total amount sued for in all of the cases of the group amounted to $120,000, one-twentieth of the $4,200 should be charged against this suit. It appears, however, that there was a recovery in the Butterfield Case which was affirmed by the supreme court, and it must be assumed that the amount of such judgment was paid by the gov ernment. Under the original agreement with the several plaintiffs, 50 per cent. of this must have been received and retained by the attorney. That sum should therefore be deducted from the $4,200, and the balance only distributed as a charge proportionately against the different actions. Inasmuch as all the figures required to reach the result are matters of record, it would seem as if a conclusion might be reached without any further reference to the master. UNITED STATES v. SEUFERT BROS. CO. (Circuit Court, D. Oregon. April 29, 1898.) 1. CONDEMNATION PROCEEDINGS-INSTRUCTIONS-DAMAGES. In a proceeding by the government to condemn lands for a boat railway along the Dalles of the Columbia river, defendant requested an instruction that when the government takes land it takes the fee simple, and the premises would never revert to defendant even if the work should be abandoned. Held, that this instruction was irrelevant, (1) because the character of the use did not admit of an inference that it might be abandoned, and the jury must be presumed to base its award on the demands of the complaint, which were for the fee; and (2) because, even on the theory of a possible abandonment, the fact that the fee would remain in the United States would not damage the defendant, since the land itself was of merely nominal value, and the damages sought were for interference with fishing rights. 2. SAME-PROVINCE OF JURY-ESTIMATES OF WITNESSES. Where the estimates of witnesses as to the value of property taken differ very widely, and the jury themselves view the premises, it is proper to refuse an instruction that they cannot disregard the testimony of the witnesses, and base their verdict on mere conjectures of their own, unsupported by the evidence, as such instructions are liable to mislead the jury into supposing that they must not rely on their own opinions. |