1900. was allowed to stand as security for interest as well as Judgment. costs. KILLAM, C. J. By our Act, R. S. M., c. 83, s. 68, "any attorney-atlaw, solicitor-in-equity or barrister in this Province may contract, either under seal or otherwise, with any person or persons or corporation whatsoever as to the remuneration to be paid him for services rendered or to be rendered to the said person, persons or corporation, in lieu of or in addition to the costs which by any tariff in force are allowed to the said attorney or solicitor, and the contract entered into may provide that such attorney or solicitor is to receive a portion of the proceeds of the subject matter of the action or suit in which any such attorney or solicitor is or is to be employed, or a portion of the moneys or property for which such solicitor or attorney may be retained, whether an action or suit has been brought for the same or a defence has been entered, and such remuneration may also be in the way of commission. or percentage on the amount recovered or defended or on the value of the property about which any action, suit or transaction is concerned." Now, while this statute contains no express provisions, as in the cases of the enactments in England and in the Province of Ontario on similar subjects, for inquiring into the fairness or reasonableness of such an agreement and for setting it aside, I cannot consider that the Court is precluded from exercising the ordinary jurisdiction of a court of equity to determine its validity upon equitable principles. But in dealing with such a contract it must be remembered that the statute authorizes an agreement of this kind between solicitor and client, and the contract should not be treated as prima facie voidable because made. between those having that relation. The circumstances must be considered in connection with the nature of the contract. 1900. So far as concerns the agreement of 1893 the attack is limited to the charge upon Macdonald's share for the Judgment. $13,350.10 and interest. It is not correct to say that KILLAM,C.J. there was no consideration for this. As to the principal the debt itself was a consideration. The decision in Crears v. Hunter, 19 Q. B. D. 341, shows that subsequent fcrbearance, not expressly contracted for, may be a sufficient consideration in law. It is a valuable consideration. As between parties at arm's length and under no disability or confidential relation, the charge would be perfectly valid. And, under the circumstances, with such a large indebtedness, a client who was not in a position to make a substantial payment, and the prospect of a much longer delay and a much greater bill of costs before payment could be expected, it was not unreasonable that the solicitor should ask for and obtain this charge. Even the rate of interest was not unreasonable. Mr. Preston was a party to the agreement. Whatever may have been Macdonald's experience and business ability, Preston was evidently a man of shrewdness and business knowledge. He agreed to a charge of interest at 8 per cent. on the Macdonald & Preston costs. He does not now seek to get rid of this on the ground of its being excessive or made without knowledge that the solicitor was not entitled to interest without express agreement. I should, at least, presume that he would not expect interest to be payable at that rate unless agreed to. The case set up by the statement of claim is one of express misrepresentation by the solicitor, which is not proved. It is not alleged that the client was ignorant or was not advised as to the law. Under all the circumstances, I think that the case is not one in which the onus should be thrown upon the solicitor to show that the client knew or was advised of the law. I prefer to rest my determination of this part of the case upon these considerations, without reference to the 1900. alleged prior verbal agreement of Macdonald to pay inJudgment. terest at that rate. My reason for this is the bald fact KILLAM,C.J. that the evidence of this agreement is the unsupported testimony of the solicitor after the death of the client. But I do not wish that the circumstance should be taken as indicating an active distrust of the evidence of the solicitor. The agreement of 1893 must be allowed to stand. The The statement of claim alleged that this agreement was made without consideration from the solicitor. plaintiff's testimony now is that it was made upon a promise by the solicitor to carry on the litigation without calling on the clients for funds. In view of the solicitor's denial and the subsequent conduct of the parties, I do not accept this as proved. The allegation of misrepresentations or concealment by the solicitor respecting the payment of large sums on account of costs by creditors of Macdonald & Schiller and Macdonald & Preston is not proved. The Commercial Bank was the largest contributor, and the correspondence shows that Preston knew that moneys were being contributed by that bank, although he denied it in the witness box. I accept Nugent's evidence that he disclosed the fact of these contributions and those of the other creditors. The statement of claim alleges that Nugent claimed that he had the right to deal with the Macdonald & Preston judgment as he saw fit and threatened that, unless Preston and Mrs. Macdonald executed the agreement of 1897 or immediately paid to him large sums of money which they were unable to pay, he would sell and dispose of the judgments for whatever sum he could realize. Preston testifies to these threats and Nugent contradicts hin, except to the extent of admitting representations that he was financially unable to carry on the litigation and negotiations without pecuniary assistance from his clients and would in consequence be obliged to sell or settle at a 1900. disadvantage. It would probably be difficult for the soli- Judgment. citor to confine these representations so that they were KILLAM, C. J. not in reality threats, and more difficult for him to do it in such a way that they would not appear to be threats, of an intention to act more in his own interest than in that of his clients. The best evidence of what he did say is found in his letters. On 30th November, 1895, he wrote Preston as follows: "The fact is unless those who are interested in these judg ments contribute something to assist me to pay off the balance of the amount owing for expenses incurred in this law suit, the result will be that I will be compelled to make some kind of a settlement of the judgments with either Delap or the Railway Company to save myself from being ruined altogether. I have explained this all so fully to you so that you will clearly understand my position. I am constantly losing my property by its being sold for taxes owing to my being compelled to use every dollar of ready money to carry on the litigation, and it does seem absurd for me to be doing this while those who are interested in the result are not contributing a dollar towards those expenses." This brought a reply dated In December, 1896, Preston wrote to Nugent, expressing regret at being unable to furnish money and hope of soon being able to do so. 24th December, 1896, full containing these sentences: a former letter, I am resolved to end the matter at the earliest possible opportunity by selling the judgments as soon as convenient opportunity presents itself. I thor oughly understand the cause of this line of action, believing as they do that, having put so much into it, I must. now stay with it to the end. But while I am most generous in my treatment of clients, once they reward my efforts only with ingratitude I am then done with them. 1900. You have a full half interest in the Macdonald Judgment. & Preston judgment in which litigation I have paid out KILLAM,C.J. nearly $2,000 and still owe nearly another $1,000 to other lawyers, making nearly $3,000 thus far in this. Then you have nearly a seventh interest in the Charlebois judg ment in which I have paid out between twelve and fourteen thousand dollars, and yet all you have contributed is about $185. . Now ask yourself if this is right treatment of me or if it is not time that I am justified in resenting such treatment from clients for whom I have done so much." . Preston answered this, defending himself and holding out hope of being able to make a payment soon. In February, 1897, Preston came to Winnipeg and had several interviews with Nugent and Mrs. Macdonald which eventually resulted in the agreement of the 5th March, 1897. On the 27th February, Nugent wrote another long let ter to Preston urging the making of some arrangement. He said, in part: "Something must be done at once. I must either be recouped my past cash outlays and be provided with means to carry through the litigation, or some agreement must be arrived at so that I may be free to negotiate for a settlement on the best terms I am able to obtain, so that I may be paid my costs and at the same time get what I can beyond this for my clients' benefit. Now, if you are not able to furnish me with the necessary cash to at least cover the disbursements in securing other counsel to assist me, with the other necessary cash outlay, then it will not be possible for me to carry on the litigation further, and I will be compelled, in order to avoid being absolutely ruined, to make the best settlement I can of the judgments to recoup me my costs and outlays. Before this utter ruin comes upon me, and in order to prevent it, prudence dictates that we face the position squarely. This is quite as much to your inter |