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upon the theory that it would have a value paid its purpose and its relation to payment as evidence according only as the authority for services subsequently rendered have a for its contents and transmission should clear and certain meaning in the law. thereafter be shown. Over objections by the A retainer is the act of a client by which plaintiffs we also admitted testimony offered he engages an attorney to manage for him by the defendant as to the meaning of the a cause in which he is a party or otherwise

This postscript in the letter quoted, not to vary generally to advise him as counsel. the terms of the resolution, but upon the act consists in paying to the attorney a pretheory that if the defendant could show that liminary fee to secure his services, or rather, the resolution passed on July 9, 1913, did not as it has been said, to prevent the opposite constitute an absolute and unqualified accept- side from engaging him. Unless there is an ance of the plaintiffs' offer, but in fact at that agreement or understanding between the atmeeting, or before the copy of the resolution torney and the client at the time the retainreached the plaintiffs, the defendant, by a er is demanded and paid that varies the purcorporate act with legal force equal to that pose of the retainer, by stipulating that it of the resolution, authorized the postscript shall be paid or received for some other or made by the secretary in his letter, the plain- additional purpose as, for instance, that it tiffs would be bound by the notice in the shall not only bind the attorney to render postscript, and that it then devolved upon

the service, but it shall also be accepted by them to reject the counter offer, or accept it him in part payment for the same when renformally by word or conduct. But the evi- dered, the payment of a retainer has no reladence produced by the defendant showed no tion to the obligation of the client to pay such thing. It developed that many, if not his attorney for the services which he has reall, the directors thought, and the secretary tained him to perform. In other words, a so wrote, that the $3,000 already paid was retaining fee is an engagement fee; that is, to be credited by the plaintiffs on account of a fee to engage and hold an attorney to renservices rendered and to be rendered; but der services to a client in a particular case no motion was put nor resolution proposed to or generally as occasion may arise. In such that effect, nor other thing done to change the services of the attorney of his choice, and

a gives the unqualified acceptance of the plaintiffs' the attorney by accepting the retainer binds proposition as evidenced by the resolution himself to that service and foregoes the oppassed. In other words, it developed froin portunity of employment by the opposite parthe testimony that the only , corporate act

ty. This is the contract and these are the performed by the defendant with respect to

detriments which form the consideration the plaintiffs' offer was to accept it, and thereof moving from one to the other. As that while the understanding of the secre- such engagements are generally made withtary in transmitting the resolution of ac-out any idea, or any adequate idea, of the ceptance to the plaintiffs may have been the amount of services to be rendered, or the

, understanding of the directors who voted for amount of compensation to be made therefor, it, they did not express that understanding in the payment of a retainer fee in the absence the resolution, or by any other motion or act, of an express understanding to the contrary nor did they convey their understanding to is neither made nor received in payment of the plaintiffs so that in law there could have the services contemplated, though undoubtbeen a meeting of minds upon the point. edly the payment and the size of such a fee Parol evidence to change the effect of an un- may be and frequently is considered by both ambiguous resolution passed by an author- parties as an ingredient entering into the ized board of a corporation is inadmissible, contract which they may make with respect or, if admitted, is without effect. Lipsett v. to the fee subsequently to be charged and Hassard, 158 Mich. 509, 122 N. W. 1091. We paid for the services to be rendered. 4 Cyc. are therefore of opinion that the resolution 926, 982; 34 Cyc. 1685, 1686, and cases cited; of July 9, 1913, was a complete and unquali- Blair v. Columbian Co., 191 Mass. 333, 77 N. fied acceptance of the plaintiffs' offer, and E. 762; Union Surety Co. v. Tenney, 200 that its legal effect is not disturbed by the 111. 349, 65 N. E. 688; Knight v. Russ, 77 Cal. unexpressed understanding of the directors 410, 19 Pac. 698; Perry v. Lord, 111 Mass. to the contrary.

504; Eggleston v. Boardman, 37 Mich. 14; Whether the $3,000, paid as retainer, could Rhode Island Exchange Bank v. Hawkins, 6 in law be considered part payment for serv- R. I. 198, 206. ices performed, in the absence of an express We are of opinion, and therefore decide, agreement to that effect by both of the par- that in this case there were two contracts ties, is a question that depends upon the between the plaintiffs and the defendantmeaning of a retainer and the purpose for first, a contract of retainer, entered into by which the retainer fee was paid.

resolution and completed by the payment of There are various definitions of a retain- $3,000; second, a contract for services, in ing fee or a retainer. While the habit to de- which the plaintiffs are entitled to 20 per mand and the right to expect such a fee may cent. of the amount recovered, without devary with custom in different jurisdictions, duction of the amount paid as retainer. nevertheless when a retainer is asked and [5] By the decree of the Chancellor in the

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litigation prosecuted by the plaintiffs under nation of such office or otherwise" shall be held their employment by the defendant, entered in trust for the society, and upon the death of the in the Court of Chancery at New Castle title holder vest in the society, provided it is then

a corporation; section 4, declaring that if it is county on January 7, 1914, one of the defend- not so incorporated the title shall escheat to the ants in that litigation was ordered to pay the state; and section 5, declaring that the Secredefendant in this case $100,000, and that tary of State shall convey it to the society, amount having been recovered, the plaintiffs quoted portion of section 3 relates to three class

whenever it shall become incorporated-the are entitled to 20 per cent. thereof, or $20,- es of persons to whom real estate has been 000. The defendant in that litigation was granted, and includes grants to laymen as truslikewise ordered by the Chancellor to release tees, as well as ecclesiastical officers, so that

upon the death of the laymen trustees of an unthe defendant in this case from payment of incorporated society the title escheated to the accrued and unpaid dividends on 500 shares state, and was returned by a grant from the of the preferred stock of this defendant com- Secretary of State upon its incorporation.

[Ed. Note. For other cases, see Escheat, pany, amounting to $1,750, withheld by it pending the litigation, and which, but for the Cent. Dig. $ 2; Dec. Dig. $ 2.*] order of the Chancellor, this defendant com- Bill for specific performance by the Wilpany would have to pay. Release from this mington Monthly

Monthly Meeting of Orthodox liability constitutes recovery by the defend- Friends against the Ninth Street Company. ant as completely as though it acquired in Decree for complainant. that litigation an equal amount of money

Bill for specific performance. The bill is in some other way. Upon this recovery, the for specific performance of a contract for the plaintiffs are entitled to 20 per cent., or $350. purchase by the defendant of a tract of land

And now, to wit, this 11th day of June, A. from the complainant, situated at the northD. 1914, upon the decision rendered by the east corner of Ninth and Tatnall streets, in court in this case, it is ordered that judgment the city of Wilmington. The land was apbe entered in favor of the plaintiffs and parently acquired in several parcels, and the against the defendant for the sum of $20,- defendant objects to the title of the com784.07, with 6 cents costs, besides the costs plainant to part only of the land, though it in this suit expended.

claims that by reason thereof it should not be required to take the title to any of the land. By four deeds four separate parcels of land

were conveyed prior to March 1, 1855, to (10 Del. Ch. 290)

James Canby and two other persons, and the WILMINGTON MONTHLY MEETING OF survivor or survivors of them, as trustees, ORTHODOX FRIENDS v. NINTH

“* * * in trust for the Wilmington MonthSTREET CO.

ly Meeting of Friends as a place for holding (Court of Chancery of Delaware. May 27, their religious meetings and to build upon, im1914.)

prove and make use of for any uses or purposes 1. RELIGIOUS SOCIETIES ($ 16*)_VALIDITY OF which the said Monthly Meeting in that caGIFTS AND TRUSTS IN GENERAL.

pacity should, from time to time, see fitting to Act March 1, 1855 (11 Del. Laws, c. 275) that whenever they, the said Ashton Richard

order and direct, and upon this further trust 8.2, declaring "that no grant, conveyance, devise or lease of any real estate, dedicated or son, James Canby and Edward Tatnall, shali

by death, removal or disownment become reappropriated, or intended to be dedicated or ap- duced in number or it shall from any

cause propriated, to purposes of religious worship: whatever be deemed expedient by the said Wil

shall vest any right, title or interest in the person or persons to whom made, unless mington Monthly Meeting of Friends to change made to a corporation organized under Rev. the trustees of the estate and premises thereby

. Code 1852, amended to 1893, p. 309, c. 39, ap- survivor, as the case may be, of the said trus

granted and conveyed, then the survivors or plies to grants, conveyances, devises, and leases made after the act of real estate dedicated prior tees above named should, on the receipt of an thereto as well as thereafter, and a deed of order to that effect in writing signed by the real estate held in trust for a' religious society clerk of the said Monthly Meeting, convey and prior to the act to new trustees after the act, tioned and particularly described with the ap

assure the said land and premises above menas well as a deed seeking to so dedicate real es- purtenances unto such person or persons as the tate after the act, passed no title.

[Ed. Note.-For other cases, see Religious said Monthly Meeting should appoint for that Societies, Cent.Dig. $f 103-108; Dec.Dig. g 16.*] purpose, to hold the same to and for the uses

and purposes aforesaid; and also upon this 2. EscHEAT ($ 2*)-STATUTE-PROPERTY SUB- further trust that if at any time or times hereJECT TO ESCHEAT.

after the said Monthly Meeting should see fit Under Act March 1, 1855 (11 Del. Laws, c. and conclude to sell and dispose of the said lot 275) § 1, declaring that no grant to or in trust of land, or any part or parts thereof, then in for any person and his successors in ecclesiasti- such case and upon receipt of a written order cal office shall vest any estate in him or his suc- to that effect, signed by the clerk of said Monthcessor, and that no grant to or for any such per- ly Meeting for the time being, they, the said son by designation of his office shail vest any | Ashton Richardson, James Canby and Edward estate in his successor; section 2, declaring that Tatnall, or the survivors or survivor of them, no grant of real estate dedicated or to be dedi. or the heirs of such survivor are hereby authorcated to religious worship shall pass any title, ized and required to grant, convey and assure unless made to a corporation organized under the said lot or piece of land or part or parts Rev. Code 1852, amended to 1893, p. 310, c. 39; | thereof, with the appurtenances and the absosection 3, declaring that any real estate within lute fee simple inheritance thereof to the pursection 2, heretofore granted “to any person or chaser or purchasers of the same, his, her or persons in any ecclesiastical office by the desig- I their heirs and assigns forever.” *For other casos see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Séries & Rep'r Indexes

In 1856 James Canby, being then the sole existence at the time of the decease of the surviving trustee, granted and conveyed the person or persons holding the title thereto. four tracts of land by direction of the Wil- or society shall not be incorporated as afore

“Sec. 4. That in the event such corporation mington Monthly Meeting of Friends, pursu- said, then, and in that case, the title of such ant to the terms of said trust, unto three oth- real estate shall escheat to the state of Delaer persons, subject to the same trusts. In ware, in the same manner and with the same 1867 Henry F. Dure sold and conveyed another had died intestate and without heirs capable of

effect as if the person holding the title thereto lot to the persons who held title to the other inheriting such real estate. four lots in trust under the same terms. By “Sec. 5. That whenever title to any real esseveral similar conveyances the title to all tate shall escheat to the state of Delaware unfive lots was apparently passed on with the tion, it shall be the duty of the Secretary of

der and by virtue of the last preceding secsame trusts until 1913. In that year the State, and he is hereby authorized, upon his religious society was incorporated under the being satisfied of the due incorporation of the then existing law relating to religious cor- congregation or society who have occupied and porations, being the act of 1911 (chapter 89, ligious worship, under and according to the

enjoyed such real estate for the purpose of revolume 26, Laws of Delaware). This act was provisions of the law first named in the second substantially a re-enactment of chapter 39 of section of this act, and a further production to the Revised Code, with one important omis- him of a certified copy of the recorded certificate

1 sion and some unimportant additions. After of the recorder of the county, in whose offiee this incorporation a deed was made by the the same is recorded, to grant and convey such trustees then holding the legal title to convey of the state of Delaware therein and thereto to

real estate and all the right, title and interest to the corporation without any trusts all five said

corporation, which shall thereupon be vestof the lots as one tract. Objection is made ed with all the right, title and interest which by the purchaser to the title to the land ac- became vested in the state by virtue of the proquired before the passage of a certain act of visions of this act.” the General Assembly on March 1, 1855

Chapter 39 of the Revised Code, referred (chapter 275, volume 11, Laws of Delaware), to in the second section was enacted prior to which act applies to all the land referred to 1855, and was a very old statute, part of it in the contract, except the small lot acquired being in existence as a statute of Delaware from Henry F. Dure in 1867, as above stated. since 1787. In brief, it provided a simple

The act of March 1, 1855, entitled "An act method for incorporating religious societies in relation to conveyances and devises of and congregations of Christian people; transpersonal and real estate for religious pur- ferred to the corporation the title to land poses” (chapter 275, volume 11, Laws of held for the use of such society or congregaDelaware), is as follows:

tion; invalidated grants of land to such reli""Section 1. That no grant, conveyance, devise gious corporations, except by deed made and

“ or lease of personal or real estate to, nor any recorded more than a year prior to the death trust of such personal or real estate for the of the grantor or for a valuable considerabenefit of any person, and his successor or suc- tion; and by section 11 limited the income cessors in any ecclesiastical office, shall vest any which such corporations could have from its estate or interest in said person or his successor; and no such grant, conveyance, demise, or property. Section 11 was repealed in 1909 lease to or for any such person by the designa- and was not re-enacted in 1911. tion of any such office, shall vest any estate For convenience the land mentioned in the or interest in any successor of such person. But this section shall not be deemed to admit contract is considered in two divisions, lot the validity of any such grant, conveyance, de- A being all but the Dure land and lot B being vise or lease heretofore made.

the Dure land. To meet an objection, or con"Sec. 2. That no grant, conveyance, devise tention that because of the prohibition of or lease of any real estate, dedicated or appro- section 2 of the act of 1855, the deed made by priated, or intended to be dedicated or appropriated, to purposes of religious worship for James Canby, who then solely held the title the use of any congregation or society shall to lot A, and the deed made by Henry F. vest any right, title or interest in any person Dure, who then owned lot B, did not convey or persons to whom such grant, conveyance, devise or lease be made unless such grant, con- | the legal title to the parcels of land therein veyance, devise or lease be made both in form described, and the contention that the land and in fact, to a corporation organized accord- therefore descended to their respective heirs ing to the provisions of the laws of this state, at law or devisees, a deed had been obtained by as contained and provided in, and by, the 39th chapter of the Revised Code, under the title of the complainant from James Canby, the eldReligious Societies.'

est male heir at law of James Canby, the "Sec. 3. That any real estate of the descrip- elder, for lot A, and also a deed from the tion named in second section of this act, and heirs at law and devisees of Henry F. Dure which has been heretofore granted, devised or demised, to any person or persons in any ec- for lot B. As a further precaution, a deed clesiastical office by the designation of such of-was obtained for both lots A and B from the fice or otherwise, shall be deemed to be held Secretary of State under the provisions of in trust for the benefit of the congregation or section 5 of the act of 1855. society using the same, and shall upon the section 5 of the act of 1855. It is claimed, death of the person or persons in whom the then, by the complainant that under one or title shall be vested at the time of the pas- the other of the three methods, or by all sage of this act, vest in the religious society oc- three combined, the complainant acquired 'cupying and enjoying such real estate as aforesaid: Provided such corporation organized ac- and can convey a good title in fee simple to cording to the laws of this state shall be in the whole land, .

The facts above stated were established by , religious Society of Friends. During that testimony heard orally before the Chancellor, year he undertook by deed to convey the land and by exhibits and records proved, including to three new trustees properly appointed and the identity of the society or congregation as pursuant to the terms of the trust, and his being also the religious congregation or socie- grantees did likewise, and so on to the comty using, occupying and enjoying the land, plainant in 1913. Before 1855 there was a and also including the establishment of the simple proceeding for the incorporation of kinship of those who as heirs at law of James religious societies, and grants and gifts of Canby, the elder, and Henry F. Dure, re- real estate to religious corporations were inspectively, made conveyances to the com- valid, except by deed made at least one year plainant of parts of the land in question. before the death of the grantor, and religious

Another act referred to in the argument corporations were limited in the amount of was the one approved March 14, 1911 (char- income they could have from the real and . ter 89, volume 26, Laws of Delaware), which personal property owned by them. These was substantially a re-enactment of chapter restrictions are called the “mortmain provi39 of the Revised Code, relating to the incor- sions." But gifts and grants of land might poration of religious societies. Section 4 of be made to trustees in trust for such corthe old act was reproduced in the new act as porations even by deed made less than a year section 5, and is as follows:

before the death of the grantor. So also "All the estate, right and title which any conveyances could be made to persons holding such society, or congregation, may have in any ecclesiastical offices and their successors in property real or personal in themselves, or by office. In these and perhaps other ways the trustees, or for their use before incorporation, shall upon incorporation, become vested in the mortmain provisions above referred to might said corporation, which may grant, demise or be, and perhaps were, avoided and cirdispose thereof."

cumvented, intentionally or otherwise. Then The case was heard on bill, answer, testi- came the act of March 1, 1855. The journals mony and exhibits.

of the General Assembly do not disclose legis

lative purpose, and there is no assisting preWilliam S. Hilles, of Wilmington, for com- amble. Nor has attention been called to any plainant. Christopher L. Ward and Robert contemporary public discussion or evidence H. Richards, both of Wilmington, for defend- of public opinion respecting the subject-matant.

ter of that legislation. For the interpreta

tion of its dubious provisions the act itself THE CHANCELLOR. The bill is for spe- is the chief and perhaps the only guide, and cific performance of a contract for the sale there are no decisions of other courts that by the complainant to the defendant of a lot are helpful. of land therein described, and the defense By section 1 it was enacted that a transfer. is based on the invalidity of the complain- of property to or in trust for any person and ant's title to all but a very small part of the his successor in any ecclesiastical office should tract. Obviously the defendant cannot be vest no estate in such person, or his succescompelled to accept a deed for a tract of sor; and no such grants to or for such perland if the title to all but a very small part son by designation of his office should vest thereof is not good. There is no dispute as to any estate in any successor of such person. the facts. Part of the land (which will be By this section, by way of illustration, a called lot A) was acquired before the act of grant to or in trust for "A. B. and his sucMarch 1, 1855, and the rest (which will be cessors as bishop of Delaware,” or to or "in called lot B) was acquired thereafter. The trust for the bishop of Delaware," were aftrusts relating to the two tracts are the same fected. In the first case the beneficiary and the beneficiary is the same, viz., the named and his successor took nothing, and Wilmington Monthly Meeting of Friends, or, in the latter case the successor took nothing. as 'the society was called in the incorpora- By section 2, all grants of real estate dedition thereof in 1913, the Wilmington Monthly cated for religious worship must be made Meeting of Orthodox Friends.

to a corporation incorporated under chapter The trusts concerning all the land were 39 of the Revised Code, and a grant made for valid, and were not within any prohibition such purposes to any person would vest no of any statute of the state of Delaware. title in the grantee. Doughten v. Vandever, 5 Del. Ch. 51. The Section 3 provides that real estate dedicated beneficiaries of the trust were the members for religious worship and which had theretoof the society from time to time, and all fore been transferred to any person "in any the intermediate conveyances, as well as the ecclesiastical office by the designation of conveyance tendered to the defendant, con- such office or otherwise” should be deemed to formed to these trusts.

be held in trust for the society using the . [1, 2] The title to lot A and lot B will be same, and upon the death of the person considered separately.

holding the legal title, the property should Lot A. In 1856 James Canby, the elder, ad-vest in the society if then incorporated. If mittedly held the legal title to the portion there were then no such corporation, then by of the land designated as lot A as sole sur- section 4, in such cases, the land escheated viving trustee under certain trusts for the to the state, and by section 5 a convenient

way was provided to pass over the title to in the Society as a collective body and upon the corporation when created.

the incorporation thereof in 1913 that interIt is probably correct to say that the pur-est was vested in the corporation under secpose of the act was to encourage and per- tion 5 of the act of 1911, and by the deed of haps enforce the incorporation of religious the heirs at law of James Canby the legal societies, in order that property held for or title vested as well. Another alternative used by such societies should be held by the proposition was that if by section 2 the deed corporation and not by any ecclesiastical of- by James Canby in 1856 was invalid, then ficer or by lay trustees. This may have been that section 3 applied to land dedicated to done either to protect the titles to land, or public worship by a religious society, whether to bring such property within the mortmain held by trustees or granted to a person in an restrictions imposed on such corporations, or ecclesiastical office, and so applied to the both purposes may have existed.

land in question, and under sections 3, 4 and In Willin et al., Trustees, V. Wright, 25, at the death of James Canby in 1858, there Boyce, 197, 78 Atl. 773 (1911), the court con- being then no incorporation of the Society, sidered that the purpose was to "make con- the land escheated to the state and by the veyances of land for religious purposes to a deed of the Secretary of State passed to the person or ecclesiastical office impossible and complainant. Undoubtedly there are difficulto prevent a conveyance by indirection or the ties in adopting either of these different medium of a trust in violation of the spirit views, owing to the ambiguity of the lanof said section 10." The section referred to guage used. is section 10 of chapter 39 of the Revised It is clear, as has been said above, that Code, and it invalidated unpurchased trans- the act of 1855 was passed to encourage and fers of land to religious corporations unless perhaps enforce the holding of the title to made by deed more than a year before the land used for religious purposes by cordeath of the grantor. Except for the matter porations organized under the then existing above quoted, that decision is not helpful in law, and to prevent the acquisition of unpurthe case under consideration.

chased land for such purposes otherwise than Two divergent views as to the purpose of by deed made more than a year before the the act of 1855 were urged by counsel for death of the grantor and with limitations as the parties. For the defendant it was urged to the amount of the yearly rents derivable that the act was a perpetuation in compara- therefrom. The then existing legislation on

| tively modern times of the ancient struggles the subject was chapter 39 of the Revised between the church and state in England, con- Code. It is also evident that the act of 1855 cerning the holding of property by the not only did not aim to take from the rechurch, and that it should be construed with ligious societies any beneficial interest which that in view. His contention is that the deed they had in the land at the time the act was of James Canby was ineffective as within the passed, but it expressly preserved such rights. prohibition of section 2, so that James Can- Section 2, as well as section 1, relates to by at his death in 1858 held the legal title, future events. Conveyances of real estate and that section 3 did not apply to a case dedicated, or to be dedicated, for religious where land had been conveyed to laymen in worship for any society must thereafter be trust for a religious society. The result made to a corporation created under chapter claimed was that the land did not escheat 39, and if made otherwise would vest no title to the state, and though the deed of the in the grantees.

the deed of the in the grantees. This relates to future conheirs at law of James Canby may have pass- veyances, but it in terms surely relates also ed the legal title, the real equitable interest to land which before the passage of the act was in those persons who in 1855 were the had been dedicated or appropriated to relimembers of the Wilmington Monthly Meeting gious worship for a society, as well as lands of Friends as individuals, and their heirs and to be thereafter so dedicated or appropriated. devisees, and not in the corporation, or in It, therefore, distinctly applies to and affects the society, as a collective body. According any conveyance of the greater part of the to this contention no provision was made in land in question, for it had theretofore been the act of 1855 to preserve the land for the acquired by the Monthly Meeting of Friends Society as a collective body on the death of for such purpose. James Canby under this a sole surviving lay trustee then holding title. section could not convey it to the new trus

For the complainant it was said that sec- tees, or any other person, or otherwise than tion 2 may not apply to land which had there to a corporation of this Monthly Meeting tofore been conveyed to laymen in trust for created under chapter 39. There was no such a religious society, but only to such land as corporation until 1913. Therefore no title should thereafter have been so conveyed. If passed under the deed which James Canby so, then the deed of James Canby to his suc- made in 1856. cessors as trustees and the other mesne con- Section 3, and indeed the whole act, is veyances down to that made to the complain- not clearly phrased, and much ambiguity exant were valid and effective. An alternative ists as to the meaning thereof. By a hard, contention was that if section 2 invalidated strict and unyielding interpretation of the the conveyance by James Canby to the new words used, the section is capable of being so trustees in 1856, the equitable interest was still construed as not to refer to, or include in its

91 A.-35

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