Decision no. ... in the matter of fixing reasonable fees for attorneys or agents under the authority of Section 9 of the...

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AMERICAN


fIXED


CLAIMS


COMMISSIONER


COMMISSION


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UNITED


STATES


AND


GERMANY


DECISION


NO.


IN THE MATTER OF


REASONABLE


FEES


FOR


ATTORNEYS


OR


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Lewis Arthur


THE


CEMENT


AUTHORITY


WAR


DOCKET


NO.


Gabrielsen, Administratrix of the Estate of


Mc Cowan


, Attorney


CHANDLER


H
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In.ni. r..
S.
V..
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ANDERSON


Ameriany Commrdssioner


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UNDER


CLAIMS


SECTION


ACT


9 OF

1928"


5379


Christian Enoch Gabrielsen, Deceased, Claiman








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MIXED CLAIMS


COMMISSION,


UNITED


STATES


AND


GERMANY


Established in pursuance of the Agreement between the

United States and Germany of August 10, 1922


CHANDLER P. ANDERSON

American Commissiona


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HE


AMERICAN


MIXED


CLAIMS


COMMISSIONER


COMMISSION


UNITED


STATES


AND


GERMANY


DECISION NO. 55

IN THE MATTER OF


REASONABLE


FEES


FOR


ATTORNEYS


OR


rNTS


UNDER


THE


AUTHORITY


SECTION


9 OF


[EE" SETTLEMENT


OF WAR


CLAIMS


ACT


1928"


DOCKET


NO.


5379


Gabriel8en,


Administratri


Estate


Christian


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Enoch Gabrielsen., Deceased,

Lewis Arther McGowan, A


Claimant


attorney


above named claimant has duly filed with the American Cornm-


ler a


written request


that he fix


a reasonable


paid


ay her to her attorney, Lewis Arthur McGowan, of Washington,

. C., as compensation for whatever services have been rendered by


him


.on behalf of and with the authority of the claimant, such serv-


E. "

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340


information


which


desires


have


considered


sioner as showing the reasonableness of the fee askedby


information has been


brought to


the attention


the claimant, who


has filed in reply two affidavits, one verified by


her and


one verified


by Mr. Peter A. Peterson, an attorney of Brooklyn, New


York,


who,


as hereafter appears, has rendered services in


case.


A copy


each of these afidavits has been transmitted to the attorney.


In this case, an award was rendered


raary 3, 1926, on behalf


of the


by thi


Estate of


Commission


Christian


Enoch


on Feb-
Gabriel-


sen, for $5,000,


with interest thereon at the rate of five per cent per


annum
amount


from


November


represents


damages


1923,


for personal


date


injuries


payment,
sustained


which


decedent


through


sinking


steamship


Orleans,


in July,


1917, by a German submarine, and for the further sum of $500,


with


interest thereon at the rate of five per cent per annum from Novem-


ifl,


1918,


the date of payment,


~~hicli


amount


represents


value


of personal


property


belonging


decedent


lost


in con-


sequence of the submarine attack.


The


decedent


was a member of


the Otleans'


crew in


the capacity


chief


engineer.


reason


injuries,


sustained


ill-health


which


decreased


earning


power,


and


died


in November,


1920.


was


survived


widow and five children.


His widow, in 1928,


was appointed admin-


istratrix of his estate, and as such has received
from the Treaasury Depsrtmet in payment of


the sum of $6,995.02
the above


The


attorney


herein,


Lewis


Arthur


McGowan


filed


in this


proceeding an affidavit stating in detail


the character and


extent of


his services in


this case.


With


reference


employment


case and his initial presentation of this claim, he alleges:


The late Christian rEnoch Glabrielsen retained me


under date


1919,


when he wrote stating "I respectfully wish


that you could do something


I




* .. >, ** .
.
H & ,l
.. 341


Gabrielsen


nor his


widow,


Hansine


Gabrielsen


communicated


tbe Department of S
Against Germany to


tate and on February


the Department


, 1923, I gave notice of their


State.


Va s necessary for me to confer with h
Wig, about the contents of the memo
*". .A .


to Mrs.


Gabrieisen


under


er personally in


ria


date


In r
May


repairing


, 1923,


Brooklyn,


February


the memorial, I
a questionnaire


for information.


1923,


conferred


with


her there


as to my filing


the claim


in her


or in behalf of her husband's


estate.


It was


decided to file the claim in


iiswn name inm order to avoid
i%. .[ ."


taking out admin


station.


saw


her again


dklyn May 26,


1923, September


H 4
BtBepared and filed a memorial
t~-of: Stember 29, 1923.


with


', 1923,
the A


* *


Lgent of the


United States under


orofteend
li support of these and
k: "!,,.


other


statements in his affidavit


Mr. Mc-


submitted


exhibit


Mainly


cons


copies


correspondence


in this


case


with


and


Mrs.


Gabrielsen


and


the American Agency before


this Commission.


These exhibits


Snot include
i: following


, and specific reference i


documents


letter


not made in hi


Mr.


affidavit to,


Gabrielsen,


dated


Pt
'V


1919


which


Gabrielsen'


letter dated


October


a reply;


letter to Mr. Gabrielsen, apparently undated,


Mrs.


Gabrielsen


letter


dated


February


, 1923


the fee agreement,


and


the power of attorney


which


transmitted


Mrs.


examination


Mr


Gabrielsen


. McGowan


with


affidav


letter


it and


dated


the


May


exhibits


shows


min addition


above-quoted


statement


that


March 11, 1920, he wrote to Mr. Gabrielsen requesting him to fill1 out


and return the questionnaire


which had been left with him in


Octo-


ber, 1919; that Mr. Gabrielsen did not reply to this letter or furnish


the information; that no claim on hi


behalf was filed


with


the De-


anrtment of State: and that Mr. McGowan annarentlv did not know





342


C:7


Slions "


and that Mr. McGowan replied, under date of


enruary


192, stating:


I note that


* *


wish


to file a


claim


on account of his


death.


wish to say that you are entitled to file a


claim


* *


would be leased


to file


a claim


your


behalf


amounting


to $50,000,


for the loss


your


husband


* *


My charge for services will amount to 25% of the total amount recovered.


cannot tell you how much


would be awarded


your


favor,


but would


want


to make the claim large enough to provide for a


big award.


will not charge


you anything for my services unless I


recover something for you.


In the meantime I am filing a brief memorandum


with the State Department


setting
$50,000.


forth


fact


that


your


husband


died,


claiming


damages


I wish that you would write me regarding


your place of birth,


the ages of


your children,


amount


compensation


was


receiving,


his age.


Mrs. Gabrielsen apparently did not
Gowan, however, on February 21, 1923,

with the Department of State, and th(


reply to


letter.


Mr. Mc-


had filed a notice of the claim


matter


had


been referred


the American Agent before this Commission


who


, on March 3, 1923,


on the assumption that Mr. McGowan had been authorized to repre-


sent the claimant, requested him
oath, in duplicate, setting forth


petition


in detail


executed


facts upon


under


which


claim is based, and stating the amount of the recovery


desired, sup-


porting the claim with the best obtainable evidence, including proof
of the American citizenship of the decedent and the .next of kin."


On May


5, 1928, Mr. McGowan


enclosing with his


letter, in


again


addition


wrote
the q


Mrs.


xestionnai


Gabrielsen,
re referred


to in his affdavit, a fee agreement and


a power of


attorney.


Mrs.


Gabrielsen apparently did not reply to th


letter.


On August 7, 1923, Mr. McGowan again wrote to Mrs.


stating that it was necessary for him to go to


New


York


I i..&
Gabrielsen, .
: to see he .4
=*


I'


tt~'


art a


- a a S a- mm -t St A~ a U a flat a flat A-fl S flU fl nfl


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!n't you kindly write


me for the purpose of


letting me


know


just what


w 40in your case. The awards are to be made soon and I desired to acquaint
It with the conditions under which they are to be made.


jotz instructed me to file your claim
** X **. **..
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which


did in


I-desire ever so much to give you some interesting


the amount of $50,000
information.


=Isanse send me the papers filled out by you in the best possible way you can.

Is. Gabrielsen did not reply to this letter. On September 10,
K H4MS


23, Mr. McGowan again wrote to her, stating that "it i


absolutely


me to


see you


as quickly


as possible


that


New


York


City


Tuesday


evening and


will


call at


your


early


Wednesday


morning"


and


that


is most


im-


your


interests


that


see you


on thi


effort of mine in a visit to New


York City for that purpose."


from Mr.


McGowan'


affidavit


that on


September


conferred


with


Mrs.


Gabrielsen


in Brooklyn.


tate-


hiant is made as to what took place on this occasion.
"Oabrielsen consented to Mr. McGowan's employ
k:.. ssibly, Mr. McGowan obtained the questionnaire, s
F-


Pos


ibly, Mrs.


lent in this case.
L copy of which,


out,


is included


among


exhibits


affidavit.


. Gabrielsen refused to


ign the


power of attorney and


Since they


have not been included among the ex-


record


shows


is that


on September


1923


Mr.


Mrs.


Gabrielsen


execution


a short


claim, in affidavit form, informing her


statement
: I have


here


and


I have


no doubts


your


recovering


sum


of money


nd'.." This document it
.1 = is incorrectly referred
" .ii ". "
ir'....oril" It was verified


due


creased


in Mr.
r Mrs.


the death


the claim


McGowan's
Gabrielsen


your


damages


late


$1


affidavit as a
on September


hus-


75,000.
"me-
25th,


on September 29th, Mr. McGowan transmitted it to the Ameri-


Agency, stating that


" additional


proof will


sent


you


On the same date


- -


he instructed Mrs.


Gabriel-


,,


m




l it :


344


The foregoing review of the evidence ubmitted b


this proceeding


how


that


prior


September


1923


was


not specifically authorized to reprset Mrs.


Gabrie sAn i


He had


taken no


action


on behalf


husband.


Her


letter


February


14, 1923, did not request him to file a notice of claim with


the Department of State.


Accordingly, in order for him to proceed


further with the claiTin, it was necessary for


him not only to obtain


proper authorization but also information concerning the claim.


addition, he sought to obtain a


written fee agreement.


were rendered as much in his own interest


as in


His services


that of the claim-


ant.


The


records


this


Commission


show


that


represented


large


number


claimants.


had


an office


in New


York


City,


as well as in


Washington, and hi


frequent trips to


New


York City


undoubtedly did not relate altogether to this


case.


Mrs. Gabirielsen states in her affidavit filed in


proceeding that


after the death


of her


husband


received


a letter


from Mr.


Mc-


Gowan


"ill


which he offered


take


the case


a basis of


twenty


five per cent"; that she "consented,"
customary and legal charge; that she


McGowan


had


advised


her;


that


on the belief that this was the


was the sole claimant


later


learned


that


as Mr.
claim


was due the estate; that after hi


employment by her


Mr. McGowan


requested


that she "retain local


counsel to gather evidence concern-


ing the case and have it put in legal


form "; and, that, accordingly,


went


office


MreL.


Peter


Peterson


,44


Court


Street,


Brooklyn, in the early fall of 1928,


and requested him "to communi-


cate with the said McGowan concerning evidence to be produced."


Mr.


Peterson


states


in his


affidavit


filed


this


proceeding


behalf of the claimant, that immediately following Mrs.


Gabrielsen's


visit


office


"corresponded


with


said


McGowan


who


made suggestions regarding the evidence to be obtained "


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^ 345


of the correspondence between Mr


McGowan and Mr. Peter-


was submitted in


this


proceeding by


Mr.


McGowan.


refer


whatever


is made


to the services rendered


Mr.


Peterson


McGowa.n',


affidavit


, although


outlines


in detail


corre-


ce with


American


Agent


transmitting


evidence


Mr.


McGowan'


affidavit


is not


based


upon


theory


was


l ii arge against
i dered by Mr.


pay


Mr.


Peterson


the claimant.
McGowan ii


services


But in


1 this


case,


rendered.


ra fee fo
is proper


That


was


r the services


take


into


ideration
Peterson


character


since


Ilirs.


and


extent


Gabriel


'100.nc-,


services


that


rendered


. McGowan


tested her to


" retain local


counsel to gather evidence concerning


case and have


put in


Bd made no reply to t
i. Gabrielsen and Mr.


legal


form."


he statements


Moreover,


contained


Mr.


in the


McGowan


affidavits


Peterson.


ii The record sha
i.~.aa*:4:i:*'..* -
Baemal statement


rWS


that


Mr.


McGowan


prepared


claimant'~


that he assisted in the examination of the claim-


a witness


in Mr.


Peterson':


office


Ma rch


, 1924;


that


a certificate


naturalization


from


Department


; and that he prepared an affidavit in support of the additional


in for the loss of personal


property


The case was taken


deration by the American and


German Agents, and the German


while


admitting


!m, contended


liability


sinking


that the evidence did not substantiate


steamship
the claim


decedent


died


submit


a result
further


Germany.


evidence


and


Mr.


American


informed


mmrr


'ission


him


"although


that 1
there


claim


would


no satisfactory


Bt:;the death of Mr. Gabrielsen was due to the inj
time of the sinking of the steamship Orleans."
e 'American Agent before this Commission pr


submitted


evidence


showing


iries he received


Spared


and


filed






'346


order to overcome the contentions and defenses raised by the Gern
Agent in his Reply.


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IIt appears that no further evidence was obtained or filed, but tha
vertheless, on October 27, 1925, ]Mr. McGowa rqiu e


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American Agent to ascertain from


the Geriman


settlement he wiRi make to the estate af .. d..
S"nries received and for the loss of personal proper '
" *Wm -'*l'^l/ ^t *^ t^l^T *- jt k- p| ^ / fL^j f n esj 4 ^p w ^jhr hI w *~r w.j r*^-J' ,,, __
l~l~ l 1 S 1KC^BA T^I1 SI H A li^r~r K C'HS^ iT i~y n.T~ l-IIIi* *'*: ''&..J Jhi-f-j L ^/W^-/-- Vj~JB.ftjJ-&. JL~rJL *J-.A.^^ V~kJk V/JL **U'V^ lif~f Tili-t *F~i.^U **^-^Jh-:^/:-y ** : ^^ ,I,


In accordance with this request, this claim was n
the American Agent with the German Agent, aned C


compromise,


offered not


oppose


award


gial

rit
* S M :
ci^l E:


$5,000,
from ]


with interest thereon at the rate of five


November


, 1923,


date


per cent per annimi..


payment


absequently increased in the amount of $500, to include a claim for *
O UC~l ll U't~~U "l it tl~lll UJ pUL 111UUySr'Ill u.::,


the loss of personal property.


to this Commission


upon


Thereafter,


an agreed


the claim


statement of


was submitted.


facts,


as a result


f which an award was rendered on behalf of the Estate of Christian


Ioinch Gabrielsen, on February 3, 1926, as already staitdL


-The


record


shows


that


Mr.


McGowan


had


originally


filed


.- ".:
--
. *. *
-4
.: .**!
H.!! '


thi# -
this .r.=


behalf


C


ad inistration"'
the sole claimant.
was on behalf of t
The situation w


>f the widow "in order to avoid the expenses of
Mrs. Gabrielsen undoubtedly believed that she wea
The award rendered by this
he estate of her husband.
as not clearly understood by Mrs. Gabi lsen.


iMlGowan's letter, dated February 24, 1926, repeats
the notice of the American Agent, that the award ,


the "estate."


His letter dated December


17, 1926,


om8ade "in your favorr" Mrs. Gabrielsen 's lete
1928 refers to the amount awarded "in my be-hal*."


reply, dated January


interested."


14, 1928, refers to the award in which


His letter, dated March 13, 192S, refers to
-L-lOIt/tt! .Uc~cU JU~d~i -L ~i/fC. d t o1a


n nation +n t whirh 1an .sra pntitlpl hr rpancn nf fln mawn rl'


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claim on


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11


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U^ ***






347


is that this notice


was received by


Mr. McGowan


on March 23,


Mr. Peterson


affidavit


hows that this notice was sent to him


Mr. McGowan on March 23, 1928, in a letter stating:

YTOU might also speak about the enclosed notice and tell her (Mrs. Gabrielsen)


t to answer it as I have acknowledged receipt of


liWce .means


inasmuch


of fees


may


as the award


have


to take


made


place,


You realize what this


with


but l


payment


in view


believe


done


some


people


who


have


signed


50%


agreements


with


lawyers,


i ,of course that is too much altogether, but I have made my fee reasonable
8io during the amount of work done on the case.


I. suggest that you have Mrs.


Gabrielsen turn over the notice to you similar


t.t.he y~elosure, when she comes to you.
. ill you kindly return the enclosed notice to me.


TThis letter does not need comment.


The notice wa


not addressed


MlcG~owa n,


claimant.


Mr.


McGowan


!howledge receipt of it.
Sd* I -


ad he requested
SThie foregoing


I Mr.


He did not forward it to Mrs.


Peterson


letter was not


return


filed in


him.


proceeding


Gabrielsen,


Mr. Mc-


, nor did he file a copy of hi


Peterson


letter of April


requesting him to take immediate step


7, 1928, also to


to have Mrs.


bhrielsen qualify


as administratrix


of her


late


husband's estate as


ifs must be done in order for her to receive payment of the award."
at Mr. McGowan quotes in full in his affidavit the following letter,


0 d April 23,
!.,.':i," ."


1928, received by him from Mrs.


Gabrielsen


Ii :lave received
a to sign some
..


until


a letter
papers


I hear from


from


Mr. Peterson


of administration.


Will


requesting me


do not


care


please correspond


come


to his


to do anything
with me direct.


'Peterson does not seem to understand that you are the lawyer on my case
:i .


that he has just helped out, regarding the necessary details.


He will not


Ite what fee he is going to demand and I am very anxious about the matter.
'hMIcGowan I have trusted you from the beginning and hope you will write


letting me know regarding the signing


letters,


and as


."*fan Mr PDatprmnn bha SI


riwht tn udprandn


T mr


n widnw with no mnnev


...







348


Who wanted me to act as attorney


for the estate


in New


York and


take out


tekers


administration


without


additional


compensation.


Later


when


laugher saw the notice to


her mother about fixing


attorney's


fees,


she made


application to the American Commissioner and I now question her right to do


It is apparent to me that the administrator of the estate,


sen, is the only one who could have made application


Hansine Gabriel-


to fix my fees, and she


has not seen fit to do so because it is perfectly evident from her


letter


(above


Quoted)


that she has confidence in me.


On May


4, 1928, Mrs.


Ruth


Gabrielsen


nderling,


children and heirs at law"


of the decedent


, requested


the American


Commissioner to fix reasonable attorneys' fees in thi


case


under the


provisions of Section 9 of the Act.


On May 23, 1928, Mr. McGowan wrote to Mr. Peterson

Mrs. Gabrielsen and her family are making more trouble about


stating


our pay for


services than any other case I know


of down here.


tried


to get


when


was in New


York last week and left word at your office to call me.


I had to come to


New


York to see her a few


weeks ago


about


taking out


administration because she wrote me she did not want you to handle the matter,


and rather than


hold


up payment of


the award


to get


our fees


of it, I took what I thought was the best course to protect our interests.
Her daughter came over and said that she had a lawyer friend that she was
going to talk the matter over with.


Now if the application


which


they made to fix


we will have to try the case all over again


our fees


to prove what


is not withdrawn,
we are entitled to.


and the Commission will allow us each a couple of hundred do


llars.


The hear-


ing with respect to the fees will be held here and I


intend to contest the matter


to the limit,


appears


that


Mr.


Peterson


obtained


appointment


Mrs.


Gabrielsen


as Admninistratrix


of the


estate


husband,


Surrogate's Court of King's County, New


York.


On July 26, 1928,


his fee for "all services rendered and to be rendered


in this matter"


was compromised in the sum of $550, to be


paid


upon


the receipt of


U 1 ~U 1U -u U r


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6:


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349


claimants."


August


, 1928,


Mrs.


Gabrielsen


McGowan


that


" under


circumstances


a meeting


time would no doubt prove futile,


" regarding a reduction


" but that, if he had any propo-
of your alleged fees," he should


: B so by return mail.
Itefahe American Comm


On August 18,


issioner


grant


1928


McGowan requested


a further


extension


time,


i. order that he might


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" adjust the fee with the claimant as I under-


eand it must be done with the Administral
"t aware of the fact that an Administrator
will try to have such appointment take pi:
tp


h:in reply, 1
. :pointed
l pointed


Ir. McGowan
administrator


tor


and


has been appointed but


ice


within


three weeks."


was informed that Mrs. Gabrielsen had been


and


had


requested


I..t h
i| 2oner to forward to her copies of any claim


the American


Commis-


which he was making.


In determining the value of the services actually rendered


by M


is proper to


take


into


consideration


fact


that


he had no agreement with the estate,


... dings before this Commission have be
eptance of the benefits arising therefrom.
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justify a finding that his services were


service(


en acquiesced


is in the pro-
in by the ac-


The circumstances of the


rendered


on the


under-


ling that compensation therefore was contingent upon the allow-
of the claim and was to be paid out of the proceeds of the award.
mount was ever advanced by Mrs. Gabrielsen either as a retainer


Accordingly, Mr.


.somewhat larger fee


than


McGowan i


would be charged


s justified in charging
for the same services


quantum


meruit


basi


The


fact


that


makes


disbursements


and


expense


in addition


i vices is given due weight by the American Commissioner in fixing
: reasonablee fee in this case.
iIt is also proper to take into consideration the fact that when Mr.


was employed by Mrs.


Gabrielsen the necessity of retaining


C *


I


'A


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Ir.


111


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q


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I ,I


.


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&"( "*" 'SI
,,,


negotiations


compromise


settlement


which


was


agreed 7


S.ipon in this case were conducted by the American Agent.


Further-


more, it is proper to consider that in order to collect the award pro-
bate proceedings were instituted by Mr. Peterson after Mr. McGowan


had


refused


render


this


additional


service


without


additional


compensation.


Now,


therefore, in


these circumstances,


and


considering that an-


other


attorney


already


been


paid


$550


claimant


assisting this attorney in the prosecution of this claim


and in


view


of the considerations stated in the general Administrative and Juris-
dictional Decision of September 28, 1928, and after careful examina-


tion


and


full


consideration


information


furnished


this


proceeding


attorney


and


claimant,


and


records*


of this Commission pertinent to the questions involved, and after due
deliberation,
The American Commissioner decides and fixes as the reasonable fee


paid by the claimant, Hansine


Gabrielsen, Administratrix


the Estate of Christian Enoch Gabrielsen, Deceased,


to her attorney,


Lewis Arthur McGowan, in this case, the sum of five hundred fifty


dollars


($550), the said fee to be paid by the claimant and received


by the attorney as full compensation for all services rendered in the
prosecution and collection of this claim, as defined in Section 9 of the
"Settlement of War Claims Act of 1928."


Done at Washington, D. C., this 29th day of August,


1929.


CHAiDER P. ANDERSON,


Amerosan Commissioner,
Mixed Claims Commission,
United States and Germany.


:








UNIVERSITY OF FLORIDA



11111111111IIIII1111111111111111111111II111111111111

3 1262 08484 1807



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