59 Barb. 574 | N.Y. Sup. Ct. | 1871
The agreement between the parties was
that the defendant should give the plaintiff $10,000 if he-prosecuted a claim to lands, &c., in Westchester, recovered the same, and put the defendant in possession of the property, and to secure payment thereof, a judgment by confession was entered within four days thereafter for that sum. The parties, before trial, compromised their differences.
The plaintiff now claims to enforce the judgment for the whole amount.
I am at a loss to see on what ground the plaintiff can recover the amount of the judgment. The parties compromised their differences before the trial. For all services rendered to that time, the plaintiff is entitled to be. paid,
I see no objection to the parties making this motion, viz., the defendant, G-nan.t, with whom the agreement was made, and Hüpfel, the owner now of the premises on which the judgment is a lien. If that judgment is to be considered as a mere security, then the owner of the land affected by it is certainly not bound to pay more thereon than the defendant himself is liable for; but whether or not, he could alone make this motion, I think there can be no doubt of the defendant’s right so to do.
As. the judgment, however, is at any rate security for
In the case of Marsh v. Holbrook, Court of Appeals, in the opinion of Judge James,
The plaintiff must be stayed from taking any proceedings on the judgment, until the amount due him from the defendant' has been ascertained. This may be done by a reference, or the plaintiff may bring an action to recover
I. It is entirely competent and legal for attorney and client to agree as to the amount of compensation to be paid the former, and to make the amount dependent on the success or recovery in the particular case. (Code, § 303. Rooney v. Second Av. R. R. Co., 18 N. Y. 368. Ely v. Cooke, 28 id. 365. Marsh v. Holbrook, Ct. of Appeals, not yet reported.)
II. Here, the defendant shows he made such an agreement. He claims it was with Van Pelt; but he made the agreement. It was explained to him, i. e., that it secured Van Pelt §10,000 when the defendant should get his property; he was to pay nothing till then; this was its effect. It was a security on the property to be recovered. On that alone. For Griiant had no other property. He understood then, perfectly, the precise effect of the judg
III. The defendant says the suit is not determined; bút is still pending. Then let him wait till it is, before he . makes his motion. Certainly, he cannot move to set aside the judgment on the ground that he has not recovered the property, if the action for its recovery is still pending. But he has availed himself of the benefit of the plaintiff’s services; .then, by his own act, he has put it out of the power of the plaintiff to perform. (See Marsh v. Holbrook, Ct. of Appeals; Hill v. Cunningham, Texas R., see N. Y. Transcript for April 5, p. 5.) He cannot thus cheat his lawyer.' It clearly appears that the settlement between Grnant and Hüpfel was made surreptitiously,- and without the knowledge and consent of Carey; and the rule is, that when a party to a contract prevents its completion by the other party, the one ready to complete is entitled to recover what he would have made by performance; in other words, he is entitled to all profits that he would have made by full-completion. “The party who is ready to perform is entitled to a full indemnity for the loss of his contract. He should not be made to suffer by the delinquency of the other party, but ought to recover precisely what he would have made by performance.” (Masterton v. Mayor &c. of Brooklyn, 7 Hill, 61, 75.) To the same effect is Jones v. Judd, (4 N. Y. 412,) where the court say: “When the completion of a job is arrested by the act or omission of the party for whom the work is done, the contractor has an election to treat the contract as rescinded, and recover on a quantum meruit-the value of his labor, or he may sue upon the agreement, and recover for the work completed at the stipulated prieé, and for the loss in profits or otherwise sustained by the interruption.” And see Wolfe v. Howes, (20 N. Y. 202;) Clark v. Gilbert, (26 id. 279;) Devlin v. Second Av. R. R., (44 Barb. 81;) Costigan v. Mohawk and. Hudson R. R., (2 Denio, 609.) In
IV. The judgment is only available as a lien on the land, the subject of that action. If Gnant owns the land,
V. A third party—Hüpfel—comes in, and claims to make this motion. It is enough to say he cannot proceed, by motion, in the action, to set the judgment aside. His only remedy would be by bill, to set the judgment aside, as a cloud on his title. He is not a party to the action.
"VI. The amount of the compensation was not,unreasonable. 1. It was fairly proportioned to the amount involved.
Ejectment for property worth .... $150,000
Mesne profits.......... 50,000
$200,000
2. The plaintiff had to take all the risk. Gnant had no money or other property ; was not able to advance a dollar, and he so stated. The agreement was that he was mot to advance. 3. Carey was to.get his pay out "of the property sued for, or not at all.
VII. This is stronger than if Carey was • suing to recover $10,000, as agreed to be paid. It is a consummated consideration. It is an absolute payment. Suppose Gnant had paid him $10,000 in cash on this agreement, declaring the indebtedness present and absolute, could he, by settling, sue for and recover it back? Yet, that is the nature of this motion.
VIII. The amount of the judgment may seem large in view of the service actually rendered. But it must be remembered that this was a contract. ' The service which Carey undertook to perform was most important and valuable. He took all the responsibility upon himself. Suppose he had spent years in carrying the case through all the courts, and fairly earned a much larger amount, could he recover one dollar beyond his contract price ? Certainly not. The rule then must work both ways, and when Gnant has the full benefit of a successful termina
I. By reference to the agreement between the plaintiff and the defendant, it appears that it was an executory contract. If either party refused to perform the contract on his part, he subjected himself to an action, and the measure of damages would be the amount of loss he had sustained by reason of the violation of his agreement. (See Clark v. Marsiglia, 1 Denio, 317; Sedg. on Damages, 204, 209-211; Shannon v. Comstock, 21 Wend. 457.) Uo rule is better settled than this. In actions of contract, damages are strictly limited to the direct pecuniary loss resulting from the breach of the agreement in question.
II. The Code, in extending the rights of attorneys, in allowing them to contract with their clients, as to compensation beyond the allowance given by statute, has not changed the law as to the construction and effect of ex-ecutory contracts. The Code gives no special privilege to an attorney as a contractor with his client. It simply relieves him of a disability that before existed. It suffers him to make a contract with his client as to compensation. It does not alter the law of executory and executed contracts. (Code, § 303.) Previous to the. Code, the law was stringent as to dealing between attorney and client. The reason for that supervision by the courts still exists. The ' Code has in no respect changed it, as to the reasons for the rule. It simply permits an attorney to make a binding contract with his client for his services, but gives him no advantage over other contractors. (Story's Eq. Juris. §§ 311, 312a, 3126, 312c and 312d)
III. “In actions of contract, damages are strictly limited to the direct pecuniary loss resulting from the breach of the agreement in question.” (Sedg. on Damages, 204, 209.) The amount to be recovered is not the price stipulated to-
IV". The judgment should have been set aside, for the reason that it does not conform to the requirements of the Code. (§ 383.) By the agreement, the plaintiff was to recover for Gnant the possession of the land, &c., and put him in possession thereof. The record is inconsistent with the agreement upon which the judgment is entered. It acknowledges a “present and absolute indebtedness,” and yet it specifies that such indebtedness depends upon a contingency, which contingency might never happen. If contains a false recital apparent on its face. It is not within the 2d subdivision of section 383, for the reason it does not show that the sum is “justly due or to become due.” It certainly is not due, and its becoming due depends on a. contingency that may never happen. It does not come under the 3d subdivision.- In order to bring it within that, the record should state that it was given for a contingent liability, and not, as in this case, for a “ debt justly due.”
V. Even where a judgment has been confessed, the court will, after a great lapse of time, order a reference to ascertain what was justly- due. (Draper’s Company v. Davis,
The order appealed from was more favorable to the-plaintiff than it should have been. The appeal should be dismissed, with costs.
I think the order appealed from should»be affirpied. All of the points presented by the appellant have been fully covered by the justice who made the order below.
Order affirmed.
Cardozo and Geo. G. Barnard, Justices.]
e
That opinion was the .prevailing opinion, and is as follows:
Jambs, J. The appellants first point is that the referee erred in excluding the evidence offered by the defendants of the value of the plaintiff’s services, and to render a judgment upon an issue not made by the pleadings.
By the Code all forms "of pleading were abolished, except as prescribed by that act. A plain and concise statement of the facts upon which the party relies, is all that is now required. This complaint, after stating the character, of the parties, the employment, its nature and the condition of the subject matter, avers the value of the services to be $5000, and that the defendants promised and agreed to pay that sum therefor.
The complaint is not therefore strictly upon the quantum meruit; it is equally a count for a specific sum agreed to be paid. Therefore proof of such agreement was not inconsistent with the complaint; neither was it a variance. And when the plaintiff withdrew all claim upon the quantwn meruit, and claimed to recover upon a special agreement for the service, the actual value of the services rendered became wholly immaterial; that question was no longer in the case, and it was not error then to reject the defendants’ offer to prove value.
There was no claim on the trial that the defendants had been misled by the plaintiffs being permitted to prove a special agreement for the services claimed in the action, or, by the rejection of their offer to prove the value of such services. Therefore if there was any variance between the allegations in the pleadings and the proof, it was not material, {Code, § 169 ;) and even now, if necessary, this court might, by order, conform the pleading to the fact proved, because the claim is not substantially changed. {Code, § 173.)
I most fully concur with the defendant’s counsel that this contract should be construed with reference to the subject and the situation. What the defendants wanted was their pay. In seeking it they had been defeated and mulcted in over §1200 cdsts. They then sought the services of the plaintiff,, and agreed if he would undertake their case and succeeded, he should be paid $5000. Such is the fact as found by the referee; and his findings being conclusive, they constitute the facts upon which the rights of the parties must here be determined. '
It was said in Thompson v. Kessel, (30 N. T. 383,) that when the testimony . before a referee is conflicting upon all the material points involved in the action,
The defendants, by their agreement with the plaintiff, were not debarred from settling and discontinuing said action; but in doing so they only terminated that litigation; they did not put an end to their contract with the plaintiff. The plaintiff having performed on his part, until stopped by the defendants, is entitled to full indemnity—is entitled to recover precisely what he would have made by performance. (Masterton v. Mayor of Brooklyn, 7 Sill, 76, and cases cited.) I think the rule is, where performance is arrested and prevented by the act or omission of one party, the other has the election either to treat the contract as rescinded, and recover on the quantum meruit the value of the services rendered, or work performed; or to sue upon the contract and recover for what has been done, at the stipulated price, and for the loss in profits or otherwise, sustained by the operation. This was the rule upon which Jones v. Judd, (4 N. Y. 412,) was decided; although upon that question this court was equally divided.
It is a general rule that a party injured by a breach of contract is entitled to recover, not only all his damages, but also all gains prevented, if the gains were .such as would have accrued to him from the contract itself, had it been performed. (Clark v. The Mayor, §c., 3 Bari. 288 to 291. Davis v. Talcott, 14 Bari. 611.)
The principle of allowing profits is now well established. (See Shepard, v. Milwaukee, 15 Wis. 318. Sinekley v. Beckwith, 13 id. 31. B. W. and B. B. M.
In cases where there is to he an outlay to earn the sum stipulated, if completion is prevented, such outlay, if not made, should be deducted, in order to determine the profits; but in this case there is no such consideration; here no outlay or expense was to he incurred; the sum agreed upon was the measure of profits, had the contract been performed; and its performance is pronounced when performance has been prevented by the interference of the other party, and hence the sum agreed is equally the measure of damages. (Gostigan v. Mohawh and H. JB. JB. Co., 2 Henio, 609.)
The referee, in adjusting the plaintiff’s recovery, apportioned it as the amount received bore to the amount claimed. This, within the principles above stated, was as favorable as the defendants could ask. They claimed $66,000; they agreed to give the plaintiff $5000 if he should succeed in recovering it; the plaintiff had partially succeeded, and was diligently prosecuting the work when the defendants arrested his proceedings and accepted $56,000. Clearly the rule of damages applied was manifestly equitable and just.
Judgment affirmed.