Maury V. R.R.CO. sure of his compensation be reduced to less than one- 1876. September third of the stipulated amount? Upon the principle Term. of a quantum meruit? He did not contract to render his services upon that principle, but for a certain sum, as he had a right to do; and he has performed, and Ch.& Ohio been ready, and offered to perform, his part of the contract fully. He did not warrant the success of his ef forts, nor was his compensation to be conditional, or in proportion to such success, but it was to be an unconditional and certain sum. If that sum exceeds the actual value of his services to his employer, or appears to be a high compensation for the services actually rendered, or agreed to be rendered, still he is entitled to receive it, he being in no default in rendering them. His contract being unobjectionable, and he being in no default in regard to it, he is entitled to the full benefit of it according to its terms. It cannot be said that there was a failure of consideration in whole or in part. It does not appear, and is not probable, that M. F. Maury engaged, or could have engaged, in any other employment which afforded, or would have afforded, him any pecuniary benefit by reason of his not having to complete the execution of his duties as trustee, or, that if he had been permitted to complete the execution of those duties, he would thereby have been prevented from attending to any other business which he would have done if he had not been trustee. What reason then can there be for any abatement or apportionment of the stipulated compensation? and what rule can be adopted for such an apportionment? Who can value the character of the trustee and his peculiar qualifications which fitted him for the office, and recommended him to the choice of the parties who selected him for that office? How can we know to what extent his business and his plans of life have been af 1876. fected by his acceptance of this office? He was wilSeptember Term.ling to accept it for the consideration which was offered him. With what propriety can it be now said that Maury one thousand dollars, instead of the sum offered, more Ch.& Ohio than three times that amount, would be adequate comR.R.CO. pensation for the services engaged? V. We deem it unnecessary to examine in detail the cases referred to in the argument of the learned counsel in the case, as the opinion we have delivered seems to be founded on well settled principles of law. There is nothing in conflict with it in the cases referred to in the notes to Cutter v. Powell, 2 Smith's Leading Cases, 6th American edition, p. 39 marg., 44 top, and 2 Rob. new Pr., p, 405; nor in any of the other cases referred to in the argument; as we think will appear by an examination of those cases. We therefore think that the decree of the circuit court is erroneous, and ought to be reversed, and a decree rendered in comformity with the foregoing opinion. The decree was as follows: This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the appellant, M. F. Maury, is entitled to receive of the appellees, the Chesapeake & Ohio railroad company, the sum of three thousand, seven hundred and fifty dollars ($3,750.00), instead of the sum of one thousand dollars, as compensation for his services as trustee as mentioned in the bill; and that the circuit court erred in rendering a decree for the latter sum and interest 1876. September Term. V. R.R.CO. as therein mentioned, instead of for the former sum with interest as hereinafter mentioned. Therefore, it is decreed and ordered that so much of the said decree of the said circuit court as is above declared to be Maury erroneous, be reversed and annulled, and the residue Ch & Ohio thereof affirmed; and that the said appellant recover of the said appellees his costs by him expended in the prosecution of his appeal aforesaid here. And this court, proceeding to render such decree as ought to have been rendered by the said circuit court, in lieu of so much of the decree of said court as is reversed as aforesaid, it is further decreed and ordered, that the said appellant recover of the said appellees, the Chesapeake & Ohio railroad company, the said sum of three thousand seven hundred and fifty dollars, with interest thereon at the rate of six per centum per annum from the first day of August 1870 (that being the day of the institution of this suit) till paid, and his costs by him about his suit in the said circuit court expended. And leave is given to sue out execution therefor; and if the said execution shall prove unavailing, then the court will proceed to enforce the payment of the sum of money and interest herein decreed, under the terms of the trust deed. Which is ordered to be certified to the said circuit court of Rockbridge county. And at another day, to wit: on the 2d day of October, 1876-The court is of opinion that the lien of the decree appealed from being the decree of the said court in this case, of the 24th day of April 1872, ought to be preserved by an affirmance of so much of the said decree as may be necessary for that purpose; and therefore it is decreed and ordered that the decree entered in this cause at the present term of the court, to wit: on the 21st day of September 1876, be amended, V. R.R.CO. 1876. by making the following addition thereto, to have the September Term. same force and effect as if it had been inserted in the said last mentioned decree, viz: It is decreed and orMaury dered that so much of the said decree appealed from Ch.& Ohio as declares that it is "adjudged, ordered and decreed that the plaintiff receive of the said defendant, the Chesapeake and Ohio railroad company, the sum of one thousand dollars, with interest thereon at the rate of six per centum per annum from the first day of October 1868 till paid, and his costs about his suit in this behalf expended, and leave is given to sue out execution therefor; and if the said execution shall prove unavailing, then the court will proceed to enforce the payment of the sum herein decreed under the terms of the trust deed," be and the same is hereby affirmed; and that the amount of the said decree so affirmed, including interest to the first day of August 1870, and costs, be credited as of that day on the amount for which the said decree of this court was entered, which decree of this court is to remain and continue in full force for the recovery of the said amount, subject to the said credit; and leave is also given to sue out execution therefor; and if the said execution shall prove unavailing, then the court will also proceed to enforce the payment of the said amount subject to the said credit under the terms of the trust deed. But this court does not mean to decide in this cause that the amount due to the appellant, for which the said decree of the circuit court or this decree is rendered, is in fact provided for and secured by said deed of trust, that question not being before this court, and other persons than the parties to this suit being interested in the same. And it is decreed and ordered that the said former decree of this court be and the same is hereby so modified and altered as to make it conform to and be consistent with this decree, which is to be read and 1876. considered as a part thereof. Which is ordered to be certified to the said circuit court of Rockbridge county, together with and as a part of the said decree of the 21st day of September 1876. DECREE REVersed. September v. Maury Ch.& Ohio R.R.CO. VOL. XXVII-90 |