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 plaintiffs we also admitted testimony offered by the defendant as to the meaning of the postscript in the letter quoted, not to vary the terms of the resolution, but upon the theory that if the defendant could show that the resolution passed on July 9, 1913, did not constitute an absolute and unqualified acceptance of the plaintiffs' offer, but in fact at that meeting, or before the copy of the resolution reached the plaintiffs, the defendant, by a corporate act with legal force equal to that of the resolution, authorized the postscript made by the secretary in his letter, the plaintiffs would be bound by the notice in the postscript, and that it then devolved upon them to reject the counter offer, or accept it formally by word or conduct. But the evidence produced by the defendant showed no such thing. It developed that many, if not all, the directors thought, and the secretary so wrote, that the $3,000 already paid was to be credited by the plaintiffs on account of services rendered and to be rendered; but no motion was put nor resolution proposed to that effect, nor other thing done to change the unqualified acceptance of the plaintiffs' proposition as evidenced by the resolution passed. In other words, it developed from the testimony that the only, corporate act performed by the defendant with respect to the plaintiffs' offer was to accept it, and that while the understanding of the secretary in transmitting the resolution of acceptance to the plaintiffs may have been the understanding of the directors who voted for it, they did not express that understanding in the resolution, or by any other motion or act, nor did they convey their understanding to the plaintiffs so that in law there could have been a meeting of minds upon the point. Parol evidence to change the effect of an unambiguous resolution passed by an authorized board of a corporation is inadmissible, or, if admitted, is without effect. Lipsett v. Hassard, 158 Mich. 509, 122 N. W. 1091. We are therefore of opinion that the resolution of July 9, 1913, was a complete and unqualified acceptance of the plaintiffs' offer, and that its legal effect is not disturbed by the unexpressed understanding of the directors to the contrary.

A retainer is the act of a client by which he engages an attorney to manage for him a cause in which he is a party or otherwise generally to advise him as counsel. This act consists in paying to the attorney a preliminary fee to secure his services, or rather, as it has been said, to prevent the opposite side from engaging him. Unless there is an agreement or understanding between the attorney and the client at the time the retainer is demanded and paid that varies the purpose of the retainer, by stipulating that it shall be paid or received for some other or additional purpose as, for instance, that it shall not only bind the attorney to render the service, but it shall also be accepted by him in part payment for the same when rendered, the payment of a retainer has no relation to the obligation of the client to pay his attorney for the services which he has retained him to perform. In other words, a retaining fee is an engagement fee; that is, a fee to engage and hold an attorney to render services to a client in a particular case or generally as occasion may arise. In such a transaction a client gives money to insure the services of the attorney of his choice, and the attorney by accepting the retainer binds himself to that service and foregoes the opportunity of employment by the opposite par- . ty. This is the contract and these are the detriments which form the consideration

Whether the $3,000, paid as retainer, could in law be considered part payment for services performed, in the absence of an express agreement to that effect by both of the parties, is a question that depends upon the meaning of a retainer and the purpose for which the retainer fee was paid.

There are various definitions of a retaining fee or a retainer. While the habit to demand and the right to expect such a fee may vary with custom in different jurisdictions, nevertheless when a retainer is asked and

As

thereof moving from one to the other.
such engagements are generally made with-
out any idea, or any adequate idea, of the
amount of services to be rendered, or the
amount of compensation to be made therefor,
the payment of a retainer fee in the absence
of an express understanding to the contrary
is neither made nor received in payment of
the services contemplated, though undoubt-
edly the payment and the size of such a fee
may be and frequently is considered by both
parties as an ingredient entering into the
contract which they may make with respect
to the fee subsequently to be charged and
paid for the services to be rendered. 4 Cyc.
926, 982; 34 Cyc. 1685, 1686, and cases cited;
Blair v. Columbian Co., 191 Mass. 333, 77 N.
E. 762; Union Surety Co. v. Tenney, 200
Ill. 349, 65 N. E. 688; Knight v. Russ, 77 Cal.
410, 19 Pac. 698; Perry v. Lord, 111 Mass.
504; Eggleston v. Boardman, 37 Mich. 14;
Rhode Island Exchange Bank v. Hawkins, 6
R. I. 198, 206.

We are of opinion, and therefore decide, that in this case there were two contracts between the plaintiffs and the defendantfirst, a contract of retainer, entered into by resolution and completed by the payment of $3,000; second, a contract for services, in which the plaintiffs are entitled to 20 per cent. of the amount recovered, without deduction of the amount paid as retainer.

[5] By the decree of the Chancellor in the

litigation prosecuted by the plaintiffs under their employment by the defendant, entered in the Court of Chancery at New Castle county on January 7, 1914, one of the defendants in that litigation was ordered to pay the defendant in this case $100,000, and that amount having been recovered, the plaintiffs are entitled to 20 per cent. thereof, or $20,000. The defendant in that litigation was likewise ordered by the Chancellor to release the defendant in this case from payment of accrued and unpaid dividends on 500 shares of the preferred stock of this defendant company, amounting to $1,750, withheld by it pending the litigation, and which, but for the order of the Chancellor, this defendant company would have to pay. Release from this liability constitutes recovery by the defendant as completely as though it acquired in that litigation an equal amount of money in some other way. Upon this recovery, the plaintiffs are entitled to 20 per cent., or $350. And now, to wit, this 11th day of June, A. D. 1914, upon the decision rendered by the court in this case, it is ordered that judgment be entered in favor of the plaintiff's and against the defendant for the sum of $20,784.07, with 6 cents costs, besides the costs in this suit expended.

(10 Del. Ch. 290)

WILMINGTON MONTHLY MEETING OF
ORTHODOX FRIENDS v. NINTH
STREET CO.

nation of such office or otherwise" shall be held in trust for the society, and upon the death of the title holder vest in the society, provided it is then a corporation; section 4, declaring that if it is not so incorporated the title shall escheat to the state; and section 5, declaring that the Secretary of State shall convey it to the society, quoted portion of section 3 relates to three classwhenever it shall become incorporated-the es of persons to whom real estate has been granted, and includes grants to laymen as trustees, as well as ecclesiastical officers, so that upon the death of the laymen trustees of an unincorporated society the title escheated to the state, and was returned by a grant from the Secretary of State upon its incorporation.

[Ed. Note.-For other cases, see Escheat, Cent. Dig. § 2; Dec. Dig. § 2.*]

Bill for specific performance by the Wilmington Monthly Meeting of Orthodox Friends against the Ninth Street Company. Decree for complainant.

Bill for specific performance. The bill is for specific performance of a contract for the purchase by the defendant of a tract of land from the complainant, situated at the northeast corner of Ninth and Tatnall streets, in the city of Wilmington. The land was apparently acquired in several parcels, and the defendant objects to the title of the complainant to part only of the land, though it 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 James Canby and two other persons, and the survivor or survivors of them, as trustees, 66* ** in trust for the Wilmington Monthly Meeting of Friends as a place for holding their religious meetings and to build upon, improve and make use of for any uses or purposes which the said Monthly Meeting in that capacity should, from time to time, see fitting to Act March 1, 1855 (11 Del. Laws, c. 275) that whenever they, the said Ashton Richardorder and direct, and upon this further trust § 2, declaring "that no grant, conveyance, devise or lease of any real estate, dedicated or by death, removal or disownment become reson, James Canby and Edward Tatnall, shall appropriated, or intended to be dedicated or ap-duced in number or it shall from any cause propriated, to purposes of religious worship, ** shall vest any right, title or interest" in the person or persons to whom made, unless made to a corporation organized under Rev. Code 1852, amended to 1893, p. 309, c. 39, applies to grants, conveyances, devises, and leases made after the act of real estate dedicated prior thereto as well as thereafter, and a deed of real estate held in trust for a religious society prior to the act to new trustees after the act, as well as a deed seeking to so dedicate real estate after the act, passed no title.

(Court of Chancery of Delaware. May 27, 1914.) 1. RELIGIOUS SOCIETIES (§ 16*)—VALIDITY OF GIFTS AND TRUSTS IN GENERAL.

[Ed. Note.-For other cases, see Religious Societies, Cent.Dig. §§ 103-108; Dec.Dig. § 16.*] 2. ESCHEAT (§ 2*)-STATUTE-PROPERTY SUBJECT TO ESCHEAT.

Under Act March 1, 1855 (11 Del. Laws, c. 275) 1, declaring that no grant to or in trust for any person and his successors in ecclesiastical office shall vest any estate in him or his successor, and that no grant to or for any such person by designation of his office shall vest any estate in his successor; section 2, declaring that no grant of real estate dedicated or to be dedicated to religious worship shall pass any title, unless made to a corporation organized under Rev. Code 1852, amended to 1893, p. 310, c. 39; section 3, declaring that any real estate within section 2, heretofore granted "to any person or persons in any ecclesiastical office by the desig

whatever be deemed expedient by the said Wil-
the trustees of the estate and premises thereby
mington Monthly Meeting of Friends to change
survivor, as the case may be, of the said trus-
granted and conveyed, then the survivors or
tees above named should, on the receipt of an
order to that effect in writing signed by the
clerk of the said Monthly Meeting, convey and
tioned and particularly described with the ap-
assure the said land and premises above men-
purtenances unto such person or persons as the
said Monthly Meeting should appoint for that
purpose, to hold the same to and for the uses
and purposes aforesaid; and also upon this
further trust that if at any time or times here-
after the said Monthly Meeting should see fit.
and conclude to sell and dispose of the said lot
of land, or any part or parts thereof, then in
such case and upon receipt of a written order
to that effect, signed by the clerk of said Month-
ly Meeting for the time being, they, the said
Ashton Richardson, James Canby and Edward
Tatnall, or the survivors or survivor of them,
or the heirs of such survivor are hereby author-
ized and required to grant, convey and assure
the said lot or piece of land or part or parts
thereof, with the appurtenances and the abso-
lute fee simple inheritance thereof to the pur-
chaser or purchasers of the same, his, her or
their heirs and assigns forever."

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Sèries & Rep'r Indexes

In 1856 James Canby, being then the sole surviving trustee, granted and conveyed the four tracts of land by direction of the Wilmington Monthly Meeting of Friends, pursuant to the terms of said trust, unto three other persons, subject to the same trusts. In 1867 Henry F. Dure sold and conveyed another lot to the persons who held title to the other four lots in trust under the same terms. By several similar conveyances the title to all five lots was apparently passed on with the same trusts until 1913. In that year the religious society was incorporated under the then existing law relating to religious corporations, being the act of 1911 (chapter 89, volume 26, Laws of Delaware). This act was substantially a re-enactment of chapter 39 of the Revised Code, with one important omission and some unimportant additions. After this incorporation a deed was made by the trustees then holding the legal title to convey to the corporation without any trusts all five of the lots as one tract. Objection is made by the purchaser to the title to the land acquired before the passage of a certain act of the General Assembly on March 1, 1855 (chapter 275, volume 11, Laws of Delaware), which act applies to all the land referred to in the contract, except the small lot acquired from Henry F. Dure in 1867, as above stated. The act of March 1, 1855, entitled "An act in relation to conveyances and devises of personal and real estate for religious purposes" (chapter 275, volume 11, Laws of Delaware), is as follows:

"Section 1. That no grant, conveyance, devise or lease of personal or real estate to, nor any trust of such personal or real estate for the benefit of any person, and his successor or successors in any ecclesiastical office, shall vest any estate or interest in said person or his successor; and no such grant, conveyance, demise, or lease to or for any such person by the designation of any such office, shall vest any estate or interest in any successor of such person. But this section shall not be deemed to admit the validity of any such grant, conveyance, devise or lease heretofore made.

existence at the time of the decease of the
person or persons holding the title thereto.
or society shall not be incorporated as afore-
"Sec. 4. That in the event such corporation
said, then, and in that case, the title of such
real estate shall escheat to the state of Dela-
ware, in the same manner and with the same
had died intestate and without heirs capable of
effect as if the person holding the title thereto
inheriting such real estate.

"Sec. 5. That whenever title to any real estate shall escheat to the state of Delaware untion, it shall be the duty of the Secretary of der and by virtue of the last preceding secState, and he is hereby authorized, upon his being satisfied of the due incorporation of the congregation or society who have occupied and ligious worship, under and according to the enjoyed such real estate for the purpose of reprovisions of the law first named in the second section of this act, and a further production to of the incorporation, under the hand and seal him of a certified copy of the recorded certificate of the recorder of the county, in whose office the same is recorded, to grant and convey such of the state of Delaware therein and thereto to real estate and all the right, title and interest said corporation, which shall thereupon be vested with all the right, title and interest which became vested in the state by virtue of the provisions of this act.”

Chapter 39 of the Revised Code, referred to in the second section was enacted prior to 1855, and was a very old statute, part of it being in existence as a statute of Delaware since 1787. In brief, it provided a simple method for incorporating religious societies and congregations of Christian people; transferred to the corporation the title to land held for the use of such society or congregation; invalidated grants of land to such religious corporations, except by deed made and recorded more than a year prior to the death of the grantor or for a valuable consideration; and by section 11 limited the income which such corporations could have from its property. Section 11 was repealed in 1909 and was not re-enacted in 1911.

For convenience the land mentioned in the

contract is considered in two divisions, lot A being all but the Dure land and lot B being 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 or persons to whom such grant, conveyance, devise or lease be made unless such grant, conveyance, devise or lease be made both in form and in fact, to a corporation organized according to the provisions of the laws of this state, as contained and provided in, and by, the 39th chapter of the Revised Code, under the title of 'Religious Societies.'

Dure, who then owned lot B, did not convey the legal title to the parcels of land therein described, and the contention that the land therefore descended to their respective heirs at law or devisees, a deed had been obtained by the complainant from James Canby, the eldest 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 case was heard on bill, answer, testi- came the act of March 1, 1855. The journals mony and exhibits.

[1, 2] The title to lot A and lot B will be same, and upon the death of the person considered separately.

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 interest was vested in the corporation under section 5 of the act of 1911, and by the deed of the heirs at law of James Canby the legal title vested as well. Another alternative proposition was that if by section 2 the deed by James Canby in 1856 was invalid, then that section 3 applied to land dedicated to public worship by a religious society, whether held by trustees or granted to a person in an ecclesiastical office, and so applied to the land in question, and under sections 3, 4 and 25, at the death of James Canby in 1858, there being then no incorporation of the Society, the land escheated to the state and by the deed of the Secretary of State passed to the complainant. Undoubtedly there are difficulties in adopting either of these different views, owing to the ambiguity of the language used.