115 N.Y.S. 703 | N.Y. App. Div. | 1909
Lead Opinion
On careful consideration of the evidence as it appears in the record in this case, I think it is established that the plaintiff was employed to negotiate with the Chinese minister at Washington the contract which is referred to as the coal concession, and that as a result of his efforts that contract (with others) was entered into, and that he would be entitled to recover the value of his service rendered in connection with that subject, were it not for the fact that he has released his claim arising ont of the performance of that service. That such release was operative to discharge that claim, now asserted in the present action, seems to me to be clear, especially when its terms are construed in connection with the surrounding circumstances in which it was executed and the documentary evidence relating to it showing plainly the purpose of its execution
It becomes necessary to advert to facts appearing in this record relating to this release. As heretofore stated, it is shown that the plaintiff was employed to render certain services in the, negotiation of contracts and the procurement of concessions for the -construction of a railroad in China and certain other purposes in connection therewith, the detail of which need not be fully entered into. It may be assumed that sufficient is shown to impose liability upon these defendants for the value of such services, if any liability at all now exists. The starting point of the controversy between the parties in the aspect in which it is now presented may he considered as the time at which three several contracts or agreements were entered into between the Chinese minister to the United States of America and the American China Development Company, namely, the 14th of April, 1898. As the result of antecedent negotiations on that day the -three cori tracts were executed and, as the plaintiff himself states, were in pursuance of an original plan or scheme of the per
While these contracts are separate in form, they all relate to the railway concession. They were negotiated and executed concurrently and were all embraced within the original scheme of the parties associated in the railway enterprise. The coal contract or concession, so called, recites upon its face that it is made in connection with the agreement of the American China Development Company to provide a loan for the construction of. the railway from the city of Hankow to the city of Canton, China, which is a provision
The plaintiff brought this action to recover for services rendered in connection with the procurement of these contracts or some of them, as well as other contracts alleged to have been negotiated and procured by him ; but upon the trial the only question finally submitted was whether the plaintiff was entitled to- recover for obtaining the so-called coal concession as an independent thing. Among the defenses set up in the answers was the general release, which was put .in evidence. The plaintiff' undertook to show that it was inoperative and ineffectual to discharge his claim for compensation for negotiating the coal contract, and he claimed that it was not the intent of the parties in executing it to extinguish his claim for compensation for that'particular service. ' I think this is to be regarded as a release general in its terms with no limitation by way of recital or otherwise, and that to avoid it it was necessary for the plaintiff to show mutual mistake, or mistake on the part of one and fraud on the other, or fraud or duress. Or, in other words, in seeking to avoid the defense of a.general release under seal, it was necessary for the plaintiff to show such a state of facts as would have justified a court of equity in setting aside-the instrument. (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.) The learned trial judge, however, sent the case to the jury upon an issue of intent of the parties in executing the document. Counsel for the defendants insisted throughout the whole trial that the construction and determination of the effect of the release was for the
It now becomes necessary to consider the evidence relating to this release. Its terms have been sufficiently stated. The first fact to be observed is that the release was given for the settlement and discontinuance of two actions which Mr. Barnes, the plaintiff, had brought against the Ameriean-China Development Company and various persons interested in the China enterprise. One of those actions, called the Brice action, was to recover for the value of services rendered by the plaintiff in negotiating and procuring and holding the contracts, concessions and agreements, specifically naming and claiming compensation for services in connection with the Hanlcoxv-Canton railway contract and the HankowPeking agreement and the coal concession. It was for services rendered in connection with all those three contracts that the action was brought. There was another action, called the Olcott action, which it is not necessary to refer to fully, because from what appears in the complaint in the action against Brice and others, it is apparent that compensation for procuring the so-called coal concession was one of the items of service for which a recovery was claimed.. After the actions were at issue overtures were made and negotiations had between the attorneys for the respective parties, appearing therein for an adjustment and settlement of the matters involved in those actions, and from the correspondence between those attorneys it is evident that what was in contemplation of all parties was the adjustment and settlement of everything involved therein. On April 6, 1900, the attorney for the plaintiff wrote to the attorneys for some of the defendants a letter, in which it was stated that it was essential to Mr. Barnes’ plans to know whether the cases were to Toe settled or not. He
Now it is perfectly clear that what was in the contemplation of the parties was the settlement of everything that was involved in the two actions that have been mentioned. The sum of $15,000 was paid, and the attorney for the plaintiff wrote to the attorneys
This evidence cannot be; so distorted as to make it appear that when the defendants were settling and adjusting all the matters in controversy in those two actions, they intentionally reserved from the effect of that release a claim which a jury has found amounts to nearly $400,000. In the suit against Brice and others the plaintiff demanded nearly $1,000,000, and he settled all that was in dispute for the s.urn of $1.5,000.
The judgment should be' reversed and a new trial ordered, with costs to the appellants to abide the. event.
Scott, J., concurred; .McLaughlin and Houghton, JJ., dissented.
Dissenting Opinion
This' action was brought to recover the value of seiwicea alleged to have been performed by the plaintiff for the defendants in procuring for them certain contracts, concessions or rights from the Chinese government, among others, one for mining coal..
The complaint charges, among other things : “IY¡ That in or about the month of February, 1898; this plaintiff, at .the special instance and request of the said association, China Railways and Concessions Project, undertook to obtain, on behalf of the said association and in the name of its: said instrument, American China Development Company, concessions and grants of right.from the Imperial Government of China, through its accredited representatives, for the obtaining of which the said association had been organized. And that thereafter this plaintiff so conducted, himself:
“ Y. That among the concessions and grants of right so obtained by this plaintiff was one for the opening, working and mining of extensive deposits of coal upon territory adjacent to the line of a proposed railway to run from the City of Hankow * * * to the City of Canton, * * *.
“ YI. On information and belief, plaintiff alleges that the reasonable value of the services by him rendered in securing said coal concessions is at least $750,000. * * "*
“X. That it was the understanding and agreement between this plaintiff and the said association and said American China Development Company that plaintiff should be paid reasonable and fair compensation for all work done and all results achieved by him in the respects aforesaid. * * *
“ XII. That as a part of and incident to the merger of the China Railways and Concessions Project, with its successor association, the Chinese Railway Syndicate, the last named association assumed and agreed to pay all liability to this plaintiff for services rendered by him in the respects aforesaid, and that upon the continuance by the Chinese Railway Syndicate of the existence of the corporation American China Development Company, the said corporation American China Development Company assumed and agreed to pay all liability of the said syndicate to this plaintiff for services rendered in the respects aforesaid.”
The answers of the respective defendants — and they are substantially identical — contain: (1) a general denial of the material allegations of paragraphs IY, Y, YI, X and XII of the complaint, excepting certain matters not relevant to this appeal; (2) allege that if any services were rendered by the plaintiff in respect to the matters set forth in the complaint, such services were voluntary and gratuitous; (3) “ X. Defendant, for a further, distinct and separate defense, reiterating the allegations of the earlier defenses so far as the same are applicable thereto, alleges, on information and belief, that the various contracts and concessions'set forth in the complaint herein were not procured through the efforts of any one person, but were procured by the joint services and efforts of the different per
At the trial the-plaintiff’s right to a recovery was confined solely to the.question whether lie obtained a concession to mine coal. He had a verdict for $391,666.66, and from the1 judgment -entered thereon and an order denying a motion for a new trial each defendant appeals. They challenge the validity of the judgment principally’upon the grounds (1) that plaintiff never obtained for the defendants- a concession to mine coal; (2) that they did not assume or agree to pay him.a reasonable compensation for his services in obtaining a concession to mine coal; and (3) that the cause of action set out in the complaint was extinguished by the settlement of the two former actions referred to..
The consideration of these questions necessitates a review at some length of the facts involved, from which it appears that in 1895-there was'formed an unincorporated association called the-China Railways and Concessions Project (hereafter called the project) for the purpose of securing certain rights or concessions in China, and .whatever rights were thus secured were to betaken in the name oftlie-defendant American China Development Company, a Hew Jersey corporation, which was formed about this time or- shortly' .thereafter. The project ivas divided into thirty shares of $1,000 each, of which $27,000 was taken, the plaintiff being an original subscriber to the extent of one share, and it seems that he thereafter acquired one and a half shares additional. The money thus raised was expended • without securing for the subscribers any substantial benefit, and in February, 1898, the plaintiff was requested by certain members of the project to devote his time and services to the matter for the purpose of securing the concessions desired.
The third instrument by reason or growing out of which is claimed a concession to .mine coal was obtained, recites that whereas the agreement as to the construction of the railroad just described had been made and “ Whereas, coal is one of the necessary articles to be used for working the said railway after its completion, How,
The plaintiff, after having obtained the concessions or agreements -'Executed by His Excellency Wu Ting Eang on the 14th of April, 1898, claimed that he was entitled to compensation for the services rendered by him in securing them. He testified that when the syndicate was formed, the late Senator Brice, who was one of the leading members thereof, assured him that in recognition of his services the shares to which he was entitled to subscribe as a member of the project would be issued to him without additional payments by him, and for that reason he did not make any additiona payments; that in October, 1898, he received notice that his opportunity to take such shares, by reason of his failure to pay, was withdrawn and that his claim for services would not be recognized; and thereupon he commenced an action against the members of the syndicate and the development company to recover the value thereof; that a few months later he brought a second action against the same parties, claiming that he had been wrongfully and unlawfully deprived as a member of the project pf an interest in the syndicate, and. demanding an accounting and settlement; and in June, 1900, these actions were discontinued by consent, upon payment to the plaintiff of the sum of $15,000, in consideration of which he executed a release to the defendants for any and all claims “ in connection with or arising out of the negotiation of any and all contracts and concessions for the construction' of a railway in the Empire of China for the China Bail ways and Concessions Project, • the American China Development Company, and the Chinese Bail-way Syndicate, and the various members thereof * * * which have been heretofore the subject of two certain actions. * * * ”
The. first, and what seems to me to be the principal question presented by the,appeal, is whether the plaintiff did, in fact, procure for the defendants from the Chinese government a concession- to mine coal. It is clear that the agreement, which has been designated- as the third one executed by His Excellency Wu Ting Fang on the 14th of April, 1898, standing alone, gave to the defendants no such right, and the jury, at the request of defendants’ counsel, was so instructed. That this was its ultimate purpose cannot be seriously questioned. The jury, as evidenced by their verdict, found that its purpose was accomplished, since the concession was obtained, and I am of the opinion there is sufficient evidence to sustain their finding in this respect. The answer of -each defendant alleged that such concessions were not procured “ through the sole services and efforts of plaintiff,” but that the same “ were procured by the joint ¡services and efforts of the different persons composing the association known as the ‘ China Bailways and Concessions Project ’***.” As a pleading this allegation is not an admission that the plaintiff obtained for the defendants a concession to mine coal. When so considered, if the plaintiff avails himself of it, he must accept the allegation in its entirety. He cannot accept what makes in his favor and reject what counts against him. (Gildersleeve v. Landon, 73 N. Y. 609; De Waltoff v. Third Ave. R. R. Co., 75 App. Div. 351; Shrady v. Shrady, 42 id. 9.) The answers were in evidence (Holmes v. Jones, 121 N. Y. 461; Tisdale v. President, etc., D. & H. C. Co., 116 id. 416; Field v. Surpless, 83 App. Div. 268), and
It is strenuously urged by defendants’ counsel that the plaintiff failed to prove a valid concession to mine coal. This, however, does not seem to me to be important. He obtained what the defendants and .the Chinese government considered a valid concession; otherwise it would not have been mentioned in the release given to the Chinese government and for which it, in part at least, paid such a large sum by way of indemnity for cancellation.
If I am correct in the conclusion that the jury was justified in finding that the defendants, through the efforts, of the plaintiff, obtained the coal concession, then it necessarily follows that he was entitled to recover unless his cause of action was extinguished by the settlement of the two prior actions, and the receipt and release which he then gave. The complaint in the prior action for services included the claim made in this action and had that action been prosecuted to and resulted in a judgment, it would undoubtedly have extinguished the present claim., But that action was not prosecuted to judgment. It was discontinued by consent, the defendants paying to the plaintiff $15,000 for certain things specified, which, according to the receipt given by the plaintiff, was “ for all services in' connection with the negotiation of any and all contracts and concessions for the construction of a railway in the Empire of Ohina for the Ohina Railways and Concessions Project and the American China Development Company and all claims against the Chinese Railway Syndicate or the various members thereof in connection therewith.” The release given by him was from all claims “ in connection with or arising out of the negotiation of any and all contracts and concessions for the construction of a railway in the Empire of China for the China Railways and Concessions Project, the American China Development Company and the Chinese Railway Syndicate, and the various members thereof * . * * which have been heretofore the subject of two. certain actions.” Upon the face of the receipt arid release, the court could not hold, as matter, of law, that the claim here made was included, and especially so
It is also urged that the recovery cannot be sustained for the reason that whatever services were rendered were in accordance with the promise of Senator Brice on behalf of the project before the syndicate was formed ; that the plaintiff having, as he claimed, an express contract, it was error to permit him to testify as to the value of his services-; that the alleged contract could not be enforced against the project, since it had not entered into it; that the plaintiff, being a member of the project, could not maintain an action against it for services rendered by him, and that the liability of the members of the project was limited to their subscriptions and neither the development company nor the syndicate ever agreed to pay the plaintiff, the syndicate having expressly disclaimed any liability. The argument of the appellants’ counsel in this respect is very ingenious, but it does not appear to me to be sound. It is unnecessary to determine whether plaintiff had a contract which he could enforce against the members ;of the project. That he did, in fact, render valuable services cannot be seriously disputed, and the syndicate and development company received the benefit of such
Under the facts; proved I think the plaintiff was entitled to maintain the action against the company and-the syndicate upon .a quantum. meruit and -it does not matter what, his relations with the- project were. After -a careful consideration of the record I am of the opinionvthat-the-plaintiff made out & prima facie case entitling him to recover.and the evidence is sufficient to support the, verdict. The defendants offered no evidence. They were content to-rely upon what they considered the weakness of plaintiff’s- case rather than upon any -defense which they might liave had to the cause of action alleged’..
Certain errors are alleged as to the admission of evidence and instructions given to the jury, but the conclusion thus.reached lenders it unnecessary to here, consider them, it being sufficient to say - that they would not justify a reversal of the judgment.
I am of the opinion' that -the judgment and order appealed from should be-affirmedi-
Dissenting Opinion
1 concur-in the conclusion reached by Mr. Justice McLaughlin and in the reasons advanced by him for affirming this, judgment.
It is not an answer to plaintiff’s claim to say that he did not obtain from the Chinese government an unassailable and absolutely valid concession to mine coal.- Whatever the concession was,.-it was good1 enough for the defendants; to adopt and- call valid, and turn back to
The record discloses that the profit to defendants in the transaction was upwards of $1,000,000. If plaintiff’s contract with defendants be deemed specific, and to have been $25,000 per year and one-fourth of the profits, he has recovered on quantum meruit less than one-fourth of the profits, and hence less than the sum prescribed by his contract. The defendants having refused to pay the alleged agreed price, the plaintiff had the right to waive the stipulated compensation and sue for the value of the services actually performed by him. The amount which he has recovered does not exceed the stipulated price, and, therefore, the rule that on quantum meruit no more than the agreed price can be obtained, has not been violated. Although the price for services has been agreed upon, the person rendering them is not compelled to sue on such special contract, but may bring an action on quantum meruit, and recover to the extent of the agreed price. (Fells v. Vestvali, 2 Keyes, 152; Boyd v. Vale, 84 App. Div. 414.) If the value which plaintiff (the only witness on the subject) put upon his services exceeded the stipulated price measured by the profits, the defendants should have introduced testimony showing that fact.- They knew accurately the amount of profits, and plaintiff did not, The defendants could have proved, if such was the fact, that the profits were small, and that, plaintiff’s proven value exceeded the stipulated price. Having failed to make any such proof, the presumption is that the amount recovered by the plaintiff is not in excess of thé $25,000 per year and one-fourth of the profits realized from the scheme.
The plaintiff was qualified to prove the value of his own services. A person who has rendered services for another is competent to give his opinion of their value, for he knows their precise nature and must have' some knowledge of what they are worth. (Mercer v. Vose, 67 N. Y. 56.) Such an opinion is not controlling upon a jury, and may not have much weight with them, but it is competent evidence, however. Plaintiff’s opinion was the only one on the subject, and he was competent to give it. The services were unique in character and were not rendered concerning an ordinary matter.
Hor is the plaintiff barred from maintaining this action because of the release which he gave to the defendants. There is no mystery about a release under seal. If it is general and absolute it is as binding upon the releasor as any other written instrument would be. If he seeks to be relieved from its effect he can avoid it only because it was procured by fraud or duress, or executed under a mutual mistake or mistake on one side and fraud on the other, or because there was no consideration. But there is another rule with respect tó releases equally as binding upon the parties- thereto, and as universally applied, and that is, that the whole instrument must be considered in construing its scope and meaning, and that broad and general terms are controlled and limited in their effect by limitations contained in the recital or any part of the instrument. This court, in Romaine v. Sweet (57 App. Div. 613), through Mr. Justice Rumsey, concisely stated the true rule as follows: “ It is the settled rule that where there is a general release followed by a particular recital tlie paper will be construed to apply solely to the particular matter.” -This rule of interpretation was deduced from the early cases of Jackson v. Stackhouse (1 Cow. 122) and Mclntyre v. Williamson (1 Edw. Ch. 34) and kindred cases. Mr. J ustice Patterson, in Slayton v. Hemken (91 Hun, 582), in discussing the subject, says: “ The rule respecting the construction of. releases is that, although taken most strongly against the releasor, yet general words are to be construed by their context, and if there appear a clear
The release in the present case is general in terms as applied to a special matter and releases the defendants from all claims and demands “ in connection with or arising out of the negotiation of any and all contracts and concessions for the construction of a railway in the Empire of China.” The language of the release is specific that it shall operate only as an absolute release of all claims and demands of the plaintiff concerning a particular thing. The release is not so broad ay it would have been had it released the defendants from all claims and demands and “ particularly ” concerning a special matter. The fair and only proper reading of its language is that plaintiff releases the defendants from all claims and demands of whatever nature he may have concerning the particular thing specified, which is the obtaining of railway concessions in China. If the plaintiff had performed any other services for the defendants the release would not have covered them. If he had held a mortgage against the defendants it would be absurd to say that the general release covered the mortgage, or if he had held a note that the note was discharged because of the release. The release is general only with respect to the particular thing which it enumerates, to wit, the obtaining of railway concessions in China.
The only matter left for consideration, therefore, is whether the obtaining of the concession to mine coal can be said to be fairly embraced and included in the concession to build a railway. I think it cannot. ■ It is true that the concession to build a railway would
It was- proper to prove the circumstances under which the release was -executed, and they show conclusively to-my mind-that it was not intended that the release should embrace the obtaining of the coal concession. The plaintiff refused to sign- the release as drawn by -the defendants’ attorneys,..and the letter from his attorney states that the plaintiff; understood that the release, was to- cover , only his services for negotiating the railway concession. It was at the plaintiff’s suggestion .and -insistence that the words “ in connection with. the negotiation of any and all contracts and -concessions for . the construction of a railway” were added to the release. The plaintiff’s-entire conduct shows that he, -at least,'understood that he was not releasing Iiis claim for services--in obtaining the.-coal concession. If the defendants supposed he was,, and paid him the $15,000 on that -supposition, it is for them to have the -release reformed so-as to embrace all- the-claims and demands of whatever nature the plaintiff had against them.
If the release did not embrace the coal-concession,-then it did-no harm- to submit the question, as to whether it did- embrace it or not to the jury. If .the extrinsic evidence raised any question concerning it,, then it was entirely proper that that question --should be ■submitted to the. jury.
The plaintiff has obtained a judgment large in amount it is- true, but I think there were no errors upon the trial calling for a reversal, .and I, therefore, vote for an affirmance.
Judgment and order reversed, new trial ordered-, costs to appellants to abide event.
Concurrence Opinion
I concur on the ground that the Cause of action was embraced in the release.