102 A.D. 573 | N.Y. App. Div. | 1905
The plaintiff sued to recover damages for the breach of a contract of employment. He alleges in his complaint that he is an attorney and counselor at law and a member of the bar of the Supreme Court of the United States and of the Circuit and District Courts of the United States for the southern district of New York, and of this court; that during the year 1900 there were various actions brought in the courts of the United States (in which actions he was associate counsel for the plaintiffs), involving the constitutionality and legality of the imposition and collection of customs duties levied by the authorities of the United States upon articles of merchandise brought into the ports of the United States from Porto Rico at various times since the beginning of the late war with Spain, and to test the constitutionality and legality of the imposition and collection of customs duties upon articles of merchandise taken into Porto Rico “from other parts of the United States” during the same period. ' It is further alleged in the complaint that there were various merchants in the city of New York whose rights depended upon the determination by the United States Supreme Court of the questions arising out of ■ the matters above referred to, and that the rights of certain named foreign commission merchants were involved
The defendant in his answer denies knowledge of the pendency of the test cases and also (substantially) the material allegations of the complaint. He admits that he did not put the plaintiff in possession of the accounts or other evidence of claims mentioned in the complaint, but he states that he did not at anytime agree to furnish the plaintiff with accounts or evidence of such claims. He also
On the trial of the case on the issue of employment, the only witnesses examined were the' plaintiff and the defendant. The plaintiff testified, with relation to the incipiency of the employment, that he was approached by the defendant, who referred to the plaintiff’s connection with the test cases and stated (in effect) that he desired the aid and assistance of the plaintiff in the prosecution of the claims he, the defendant, represented. The defendant does not deny that conversations took place between the plaintiff and himself on the subject of employment, but his intimation is that an employment was sought or solicited by the plaintiff, and he claims that it was never made although it liad been spoken of. In other words, the position taken by the defendant is that while there was general talk or conversation with respect to a possible employment, there was no actual retainer, and that whatever was in contemplation or negotiation was dropped and terminated without any definite understanding or agreement.
It is quite apparent from Mr. Carlisle’s own testimony that no definite arrangement was made until February, 1901. ' General conversations looking to employment had been had upon the subject' before that. In February (or March) of that year, according to the plaintiff’s statement, it was the subject of consideration whether suit' should be brought against the collector of customs in Few York or against the United States in the Court of Claims at Washington, or against the United States in the United States Circuit Court in Few York; and he testifies that it was the defendant who proposed to pay
It appears from Mr. Carlisle’s testimony that the defendant himself made the proposition for five per cent compensation, and that being so, it is said that the contract of employment was then made, but the evidence does not fully bear out that contention. The plaintiff testified that after the conversation relating to the terms of employment, he said to the defendant that he would go back to his office and put in the form of a letter “ the proposition which will hold both of us.” And that letter becomes very important because the defendant insists that it furnishes convincing evidence that a con tract did not then exist between him and the plaintiff and that the plaintiff so understood, and admitted that there was to be no contract until the terms and conditions thereof were reduced to writing. The plaintiff on the 19th of February, 1901, wrote to the defendant as follows: “ In accordance with our understanding the other day, I write to say that I will undertake the collection of the claims in your hands on the following conditions: You are to place in my hands all the claims controlled by you for taxes or duties paid at New York on goods brought from Porto Rico, to include all claims for such duties that may be paid hereafter, up'to the time of the final decision on the questions involved. I will institute and prosecute such proceedings in the courts or elsewhere, as may be necessary to secure their collection, and when collected in whole or in part, I am to receive as compensation for my services a sum equal to five per cent upon the whole amount actually collected, and no compensation in case nothing is collected ; but you are to defray all necessary expenses in the prosecution and collection of the claims, which will consist of charges for printing, traveling expenses and such incidental charges as may be connected with the business. Of
■ There can be no doubt of the meaning of this letter. At its date there was no agreement between the parties. The whole matter was in fieri. It is intimated in the letter that the writer intended to reduce the terms of the agreement to writing. The words, “ if you desire to go on with it,” indicate that it was then still open to the defendant to malee a contract or not, as he pleased. He had his locus pocnitentice, and if the case rested there, there could be no question that there was no binding obligation assumed by the defendant. But it is in evidence that shortly after the defendant received that letter, he and the plaintiff had a conversation in which the defendant accepted the terms of the letter and agreed to furnish to the plaintiff the details necessary for him to take action either in the courts or in the Treasury Department for the collection of the claims in his hands. It is very clear, upon Mr. Carlisle’s testimony, that the defendant assented in that conversation to the employment and waived the condition of the contract being reduced to writing. The decision of the Supreme Court of the United States in the test cases had not been rendered at the time of that conversation. The defendant denied in his testimony that he had the conversation which was in effect an acquiescence in the terms of Mr. Carlisle’s letter of February nineteenth, but that was a matter for the consideration and determination of the jury and they found in favor of the plaintiff on that disputed question. The conversation having taken place and the defendant having not only acquiesced in the terms of the letter, but having, according to the testimony of Mr. Carlisle, promised to furnish him with the data he required for the purpose of ascertaining the names of the claimants and the amounts which they claimed, it is obvious that the defendant waived the mere formality of the execution of a written instrument, as expressive of their agreement. If the plaintiff’s version of the conversation be true (and the jury have found it is), then it is apparent that there was a waiver of a written agreement. An agreement to contract is, of course, not a final contract, because something is left open ; but where all the terms are settled, and what each party is to do is fully understood and agreed upon, although a written instrument may have been in contemplation, the execution of such an
The defendant never furnished to the plaintiff the data required to enable the latter to present the claims, either in the courts or to the Treasury Department. There is no dispute as to that; but it does appear that the defendant, repudiating his contract with the plaintiff, employed another lawyer to prosecute and collect the. claims represented by him. That other lawyer had been the Attorney-General of the United States who argued the test cases in the Supreme Court of the United States against Mr. Carlisle. Through his instrumentality and agency the claims were collected. They were paid by the Treasury Department.
The breach of the contract is clear. The refusal to give the plaintiff the data required so that he might perform his service is admitted. He could not proceed without them. There is some suggestion of inequity in the plaintiff’s claim, because it is said he did nothing. This action is not on a quantum meruit. The plaintiff was not required to prove what work he actually performed. There was a special contract and a breach, and the action is for a specific amount of damage, for an agreed sum, resulting from that breach. As this action is constituted, proof was not required such as would be necessary in an action on a qucmtum meruit. Had it been such an action it might have been necessary for the plaintiff to prove what he did ; but here there was an executory contract and a palpable breach and the plaintiff is entitled to recover the fixed value of his contract which was the five per cent agreed upon. It
After the decision of the Supremé Court of the United States fixing the rights of the defendant’s constituents (for in principle they were identical with those of the claimants in the test cases), it was established that the claims put for enforcement in Mr. Carlisle’s hands could be collected. The value of the contract would have been secured to the plaintiff but for the defendant’s default, and that value is fixed by the agreement. The plaintiff is entitled to recover his five per cent whether that amount is to be called strictly “ compensation ” or the “ value of the contract ” or “ profit.”' (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.)
The charge of the learned judge below is substantially correct upon that subject. Here was a complete breach of a contract; the action was for the sum agreed to be paid and not for the value of services rendered; the plaintiff was prevented by the defendant from earning the amount agreed upon, and was ready and willing at all times to render the services for which he was employed.
There is raised on the record on this appeal from the judgment a question which has been argued upon an independent appeal and which will be considered separately.
Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs.