58 Md. 226 | Md. | 1882
delivered the opinion of the Court.
There are two appeals in this record which will be disposed of in one opinion.
Abraham B. Patterson sued Henry Y. Attrill in the Baltimore City Court, and, by consent of parties, the case was transferred to the Court of Common Pleas. The declaration is. in the usual form upon the six money counts. The following bill of particulars was filed, in response to a demand made by the defendant:
“ Henry Y. Attrill to Abraham B. Patterson, Dr. '
“ To services rendered by the said Patterson, at the request of said Attrill, between the first of September, 1813, and the 9th of April, 1815, in aiding vto procure a compromise between the Crescent City Gas Light Company of the State of Louisiana, and the New Orleans Gas Light Company of the said State, which compromise resulted in an agreement of consolidation, or amalgamation between said
two companies........................................$50,000.00.”
The defendant pleaded never indebted, and did not promise as alleged.
The plaintiff contends, that the bill of particulars, furnished on demand, becomes a part of the declaration, and makes this declaration contain a count upon a special contract. The bill of particulars does become a part of
, The appellee, Patterson, claims to have been employed by Attrill (the appellant) to aid in bringing about a compromise between two gas companies in the City of New Orleans, and to a proper understanding and appreciation of the questions presented, it is important to see what the subject of controversy, between the two companies, was.
“The New Orleans Gas Light Company,” by virtue of a charter, granted by the Legislature of Louisiana in (1835) eighteen hundred and thirty-five, was supplying the City of New Orleans with gas. By its charter it possessed the exclusive privilege of making and vending gas, in the City of New Orleans, for a period of forty years, which would expire on the first day of April, 1815. In 1860 an Act of the Legislature of Louisiana was passed, with the title of “An Act to extend the area of gas. lighting in the City of New Orleans, and to reduce the price now paid by consumers.” This Act contained a section extending the charter of the New Orleans Gas Light Company to the first day of April, 1895, but declaring its privileges should cease to be exclusive after the first day of April, 1815; which was the limit of its existence by its original charter.
The Crescent City Gas Light Company claimed, that the Act of 1860, whereby the charter of the New Orleans Gas Light Company was granted an extension of their charter, for twenty years longer, with the privilege of making and vending gas, (though not exclusive' after-April 1st, 1815,) was unconstitutional and void, by reason of certain provisions in the Constitution of Louisiana respecting the form and contents of the title of Statutes. If this position of the Crescent Gas Light Company was correct, the New Orleans Gas Light Company would cease to have corporate existence on the first day of April, 1815; and from that day the “ Crescent City Gas Light Company” must supply the city with gas. The New Orleans Gas Light Company was -fully equipped to afford the supply. If its existence ended on. the first day of April, 1815, the new company must put itself into condition to fulfil the requirements of its charter after that date. An immense, outlay was necessary which it was dangerous to encounter unless the claim to monopoly was assured by some judicial decision; whilst the other company had its mains, pipes and appliances all ■ ready and in constant use. It was desirable therefore, if possible, to settle these conflicting claims by purchase of the works of the old company by the new, or the sale by the new, to the old company, of their charter rights; or by some ‘kind of compromise which would end the controversy. The defendant, Attrill, having acquired a decidedly controlling- interest in the stock of the “ Crescent City Gas Light Company,” in September, 1813, employed the plaintiff, Patterson, to go to New Orleans to negotiate for him,
The outcome of it all was an amalgamation of the two companies on the 29th of March, 1875, under a general law of the State authorizing such consolidation, which was passed by the Legislature the December preceding; by which agreement the consolidated company retained the name of the “New Orleans Gas Light Company,” and all the franchises of the Crescent City Company were conferred upon it; and a certain amount of paid u|D stock of the newly organized company- was issued to Attrill, (the defendant,) as the representative of the stockholders in the Crescent City Company, in lieu of the stock of that company, the certificates of which were cancelled.
Having given as concise a history of the origin of this-suit as we could, to make it perfectly intelligible, we must consider, to some extent, the proof with respect to the contract which we are to construe, and give effect to, according to the rules of law which we find applicable. And inasmuch as the appellee was entitled to have the jury consider his evidence of what the contract was, as the possible basis of their verdict, we shall assume for the purposes of this decision, that the conversation, in which the contract was made, and which, in fact, was the contract, was exactly what he represents it to be.
Awhile prior to the fifteenth of September, 1873, Patterson says, Attrill told him “he should want his services, and to hold himself in readiness; ” to which he rejalied “very well.” About the 15th or 20th of the same month, Patterson testifies that Attrill said to him he was “prepared to talk;” and to his inquiry “what is it?” Attrill replied, “It is a similar transaction to the one you carried through here.” I want you to go down to New Orleans to make a negotiation there; I have possessed myself of a majority of the stock of the Orescent Gas Company—
In the course of his examination as a witness, Patterson was asked, by his own counsel, “if there was any limitation put upon the means he was to use, and if so, what? ” He replied there was no limitation; “I had full and plenary power to do anything and everything I saw proper.” But that is manifestly only the construction he chooses to put ■ on the contract; for he expressly says in reply to'a question from AttrilTs counsel, “if anything was said with reference to any proceedings, other than proceedings for compromise—legal proceedings—proceedings to coerce them?” “There was nothing said on that subject; because, he (meaning Attrill,) was so hopeful at that time, that he 'really took it for granted that Mr.
Taking the contract upon which Patterson started for New Orleans, to be just what he has represented it to be, in the conversations which he has narrated, it is almost too plain for argument, that this contract 'contemplated nothing but negotiations, through which resort to legal proceedings were to be avoided. Negotiations and compromise exclude the idea of actual resort to. hostile litigation. To compromise, is to adjust a dispute by mutual concession. To negotiate, means substantially the same thing; to effect something, or an effort to effect something by treaty or agreement. This is what lexicographers say; and it is the common sense, every-day understanding of such language. Men go to law only when they cannot come to a peaceful agreement as to their respective rights and claims as against each other. To negotiate A compromise between these two companies, was what this contract contemplated Patterson was to effect, or aid in effecting; and if his skill in such matters, of which his employer seemed to have such full appreciation, accomplished or aided in accomplishing an advantageous—“a good compromise,” he was to have the sum stipulated for as compensation. Delay was a serious matter, if construction had to be undertaken ; or if a law suit must precede or accompany it. Hence, expedition was urged; and all through the correspondence, Patterson was entreated to effect the compromise as quickly as possible. That this construction is right, and was the understanding Patterson had of it at the time, is abundantly clear from what Patterson said at the time of making the contract, and what he said in his testimony. He said in the conversation with Attrill, he would not go for twenty-five thousand, taking the risks, when “nothing might come of it,” and he get “no compensation.” Therefore, as “probably he would get no compensation,” he insists on double the
The suit, which was instituted after consultation with attorney G-ibson in St. Louis, was not begun until the 14th of February, 1874. From its institution to its sue
Tbe suit instituted by Mr. Gribson and bis colleagues,, as has already been stated, resulted in sustaining tbe whole theory and claim of tbe Crescent City Company, and put tbe old gas company entirely at tbe mercy of tbe new one.. Under such circumstances tbe terms were easily arranged for tbe consolidation, or amalgamation of tbe companies, which was effected. This final agreement Patterson calls, “a compromise," to the benefit of which, as “a good compromise” be claims to be entitled, by tbe agreement;, being as be contends tbe result of bis advice and entreaty. As has already been said, this claim is based on tbe theory that be was authorized to proceed by litigation if necessary ; and 4hat if be was not clothed with such power in tbe start, bis powers were subsequently enlarged; and that after all be bad done in tbe matter be could not be discharged so as to deprive him of bis right to tbe agreed contingent fee. There is some evidence in tbe record, in tbe letters of inquiry, (in November and afterwards,) concerning progress, when tbe negotiations did not prosper and promise immediate success, of authority to employ-counsel and institute some legal proceeding.
There is also in the record, evidence of communications from Attrill to Patterson after the 11th of December, 1813, and up to February, 1814, tending to prove Attrill was still retaining Patterson in his employment in some capacity; and tending to prove authority to him to consult lawyers,, and perhaps employ them for Attrill to commence some kind of suit. Whether this continuation of Patterson in his employ, by Attrill, in the way mentioned, had the effect to so modify the contract originally made, as to entitle him to claim rightfully, that he was taken into the case as agent, and general manager, so that he cannot be refused payment, according to the terms originally speci
It may be laid down, as a general rule, that an agent's authority to act for a principal, is alway revocable at the will of the principal; and may at any time be put an end to by withdrawing the authority; unless the authority be coupled with an interest; or has been conferred on the agent for a valuable compensation moving from him to the principal. 1 Parsons on Contracts, 69; Wharton on Agency, 95, and notes; Story on Agency, secs. 463 and 464; Hunt vs. Rousmanier, 8 Wheaton, 174; Simpson vs. Lamb, 84 E. C. L., 603; Blackstone vs. Buttermore, 53 Pa., 266; Hartley’s Appeal, Ib., 212; Creager vs. Link, 7 Md., 259.
What constitutes an authority coupled with an interest, the decisions without exception, are agreed about. In Hunt vs. Piousmanier, already cited, Chief Justice Marshall says, it “is an interest in the thing itself on which the power is to be exercised, and not an interest in that which is to be produced by the exercise of the power.” In Blackstone vs. Buttermore, 53 Pa., 266, the same rule is laid down in almost the same terms, and that is now the doctrine of all the text books.
There is a class of cases, where, if the agent has done ■something in virtue of his authority, and -incurred expense before the agency is revoked, he will be entitled to be reimbursed. Eor example, if the negotiations of a broker
Applying these principles to the case in hand, we cannot see bow Patterson can be regarded as having contributed, in any proper legal sense, to the production of the result finally attained. It can hardly be termed a compromise. It was the dictation of terms to a conquered or captured ibe. But Patterson insists that, because he advised the suit, he is entitled to his compensation; for the “compromise,” effected at the termination of the suit, “was a good one.” The institution of the suit did not bring the compromise. Had the bare institution of suit brought the compromise, Patterson's claim would be better founded. It was, however, nothing less than the judgment of the Court of last resort, after tedious and costly litigation that rendered the old company helpless, that brought consolidation. An essential condition, then, in the original contract, was not fulfilled by the agent. He did not procure the compromise.
All the parties best able to speak on the subject, as in Earp vs. Cummins, say he did nothing towards bringing it about; and they were not influenced, in the slightest degree, by anything he had done. The original contract, as we have said, did not give Patterson unlimited powers,, to settle the matter by any means whatever, including costly litigation, so that he should be entitled to his contingent fee, no matter how the result was brought about.
It is the usual rule in agencies, that where a principal has an agent employed at an agreed compensation, and the principal confers on him additional powers which involve greater duties, with no stipulation for additional compensation, he cannot recover extra wages for the additional service, unless a custom has fixed it otherwise. Wharton on Agency, sec. 323, and notes;. U. S. vs. McDaniel, 7 Peters, 1; Moreau vs. Dumagene, 20 La. An., 230. If that he so, a fortiori the requirement of additional duties, and their performance by the agent cannot, he taken by implication to remove the original agreement into provision for that very service, and to make the compensation agreed on, a compensation for services in ’ future of the new character. Some of the services set up as enlarging the effect of this agreement could very well comport with the idea of their promoting the compromise which was sought. Of course, we now refer to what was directed and done in respect to counsel and suits anterior to the rupture in December, 1873, by the rejection of overtures for compromise; and the cessation, by Attrill, of all efforts to procure one. There is an
In Simpson vs. Lamb, 84 E. C. L., 603, (already cited,) the plaintiff had been employed as agent to sell an advowson, upon a compensation of five per cent, of the purchase money. Before, he had procured a purchaser, the employer sold it himself. The Court held that he had no claim against the defendant; but that if he had shown ■expenses incurred, he could have recovered on a quantum meruit; provided the steps were taken, and expenses incurred before knowledge of sale by his employer. The ■Court asserted most unequivocally the right to revoke.
In Campanari vs. Woodburn, (15 C. B.,) the plaintiff was employed to sell a picture, for which he was to receive, if he succeeded, one hundred pounds. Before he had sold, the principal died. He afterward sold the picture, and the administratrix ratified the sale; but refused to pay the hundred pounds. It was ruled that the principal in his life-time could have revoked without liability for more than expense or labor actually incurred before revocation; that death operated to revoke, and unless the administratrix had been shown to know of the contract before ratifying the sale, she was not bound for the hundred pounds; but might have been liable for a reasonable remuneration; but that was not declared for.
The same doctrine is maintained in Pritchet vs. Badger, 87 E. C. L., 295, where it was ruled that in case of revocation a party could recover for services actually rendered on a quantum meruit. The case of Toppin vs. Healey, 11 Weekly Reporter, 466, is to the same effect. We refer Also to Tombs vs. Alexander, 101 Mass., 256, and Walker vs. Tyrrel, Ib., 257. Although this is a case where the
The situation of this ease may he thus illustrated by a supposed case of agency to sell land, wherein, we think, it will hardly be contended that the agent would be entitled to compensation. A and X have conflicting claims to a tract of land. X is in possession claiming absolute title. A claims that by the true construction of the will of X the title of X and his right of possession will expire in five years time. X claims that the provision in the will of X, on which A bases his claim is void. X lias put on the land large improvements for manufacturing, with all the necessary machinery. A has counsel that his claim is sound and maintainable at law. A desires to continue the same kind of manufacturing operations upon the land when lie gets possession, and is in treaty with X, for a settlement of the controversy by compromise; each conceding something. K is acting as agent for A, in the negotiations, and thinks he has a good prospect of success. A believing P to be especially adroit in such things employs him, to cooperate with K in securing a compromise with X, and
Suit is threatened by A, and perhaps, actually instituted, through the agency of P„to menace N into compromise. N refuses any and all approaches, adhering to the view that his position is impregnable. Compromise is impossible. P’s address wholfy fails, and he confesses it, but he urges upon A to fight it out at law, which he reluctantly concludes to do;—¡employs counsel, (perchance at P’s suggestion,) and takes P to give the counsel “the points.” Suit is instituted at large expense and cost, and after “enduring the law’s delay,” A gets finally from the Court of last resort a decision in his favor. N has only a brief space left for enjoying possession. A’s success is complete, and N submits to A’s terms for possession and machinery. P then claims his contingent fee. Can it be possible that by any rule of law P’s claim can be sustained? Clearly not. The most he could possibly claim for, would be for any loss of time or service he had rendered A at. his solicitation, after compromise measures failed. If not, then the plaintiff’s claim for his fee in this case, as pressed, cannot be sustained. It is as totally without foundation, as the claim of P in the supposed case.
Bringing the instructions granted and rejected to the test of these views and principles, we find there was error in granting the first and second prayers of the plaintiff. Those instructions considered separately, or as together constituting one instruction, should not have been granted. ■They proceed upon the theory, that Patterson’s agency was irrevocable, except upon payment of the whole contingent fee; that the facts narrated in the first prayer amounted to authority to Patterson to do anything and everything, including the prosecution of the suit to a conclusion, for the purpose of accomplishing the object; that his action was not confined to compromise measures only;
It is proper to say of the first prayer, that considered alone, it enumerates facts which according to the view we have, and have expressed, should not have been included in it, because it makes it misleading. We forbear to particularize, as wre think we have sufficiently indicated in our discussion of the case, our views.
Such being our view of the plaintiff’s first and second prayers, it was error to qualify the defendant’s first and fourth prayers by making them in any way dependent on them. We will only say with respect to the first and fourth prayers of the defendant, that the proposition intended to be submitted by them was correct. The prayers themselves may need modification in consequence of the views we have expressed and on which the case must be tried upon remand. The third prayer of the defendant should have been granted, and it was error to reject it. We see no valid objection to it.
The fifth, and the fifth and a half prayers of the defendant, were properly rejected. They denied the right of the plaintiff to recover anything, and excluded from the jury the evidence of service, and of detention away from his home and ordinary work, at the instance of the defendant, of the plaintiff; to which we have already adverted as a ground of recovery under his declaration.
The proposition of law submitted by the sixth prayer is sound so far as it intends to ask the Court to say that the advice and persuasion of Patterson form of themselves no
Upon a remand, unless there is evidence other than we have before us, there will be no ground for the seventh prayer to rest on, and we need not consider it further.
The eighth prayer we need not consider.
The proposition of law intended to be submitted by the defendant's ninth prayer is sound, and with modification to suit the case as presented on the new trial should be granted.
The tenth and eleventh prayers are correct and should have been granted.
The measure of damages is just what the jury may find the services, if any, of the plaintiff, rendered the defendant, and his time if any, occupied for the defendant at his instance, after the failure of compromise negotiations, to have been worth, and ought reasonably to be paid for them; and the measure of damages is not what was fixed by the agreement in September, 1813, as the contingent compensation dependent upon effecting a compromise; but the twelfth prayer does not properly present the question as we look at the case.
It is proper to say in this connection, that the eases of" Jaffray vs. King, 34 Md.; Dugan vs. Anderson, 36 Md., and Slack’s Case, 45 Md., have no application to this case.
As they were relied on by appellee's counsel, we thought ■it but proper to say, that we intend nothing we have said to be in conflict with the principles established in these cases for contracts for service, for specified time and specified compensation.
The appeal of Patterson will fall with the reversal of" the judgment, and order for a new trial. But we think it proper to say that the action of the Court, in requiring the plaintiff to remit so much of the verdict as was in excess of the damages laid in the declaration, was in entire conformity with the law, practice and decisions, of the State,
This record embodies so much that ought to have been omitted under the rules of this Courts that we shall reverse with the requirement that the • costs of the appeal shall be divided between the parties equally.
•Judgment reversed and new trial ordered, the costs of the appeal to he equally divided between the parties.
Robinson, J., dissented.