On Petition and Supplemental Petition for Rehearing.
PER CURIAM.The original opinion of the Court was not intended to put the stamp of approval upon the action of appellee in not placing the $23,777 of his client’s money safely in trust until the question of his fees was determined. The lower Court, after hearing the facts, has not only exculpated the defendant from evil purpose, but has held that he was entitled to said amount for compensation due him for services as an attorney. There is support in the record for the finding of the lower Court and we will not overturn it.
The insistence of counsel for appellant, in his supplemental petition for rehearing, that the lower Court should have required an accounting, under the facts in this case seems to be relatively unimportant since the failure of the defendant, in the present suit for an accounting, to demand by counter-claim any additional sums which he claimed in excess of that for which he was sued would, under Rule 13(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, preclude appellee from any further actions or demands for the recovery of any additional sum for services arising out of the transactions involved in the suit.
In order to correct inapt language in next-to-the-last paragraph in the original opinion it is amended to read as follows:
“In the instant case the client fixed counsel fees at 6%% of the amount recovered on interest coupons, but the attorney asserts that this was capricious and arbitrary — the denial of which raised a question of fact. On the evidence presented the lower Court held that the fee was arbitrarily fixed, and that a reasonable fee would be a sum considerably in excess of the amount theretofore paid to, plus the amount retained and appropriated by, the attorney. It cannot be said that the finding of the lower Court is without substantial support in the record.”
The petition and supplemental petition for rehearing are hereby denied.