92 N.Y.S. 917 | 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 plaintiff) 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, or would be controlled, by the decision of the Supreme Court of the United States of such questions. It is then alleged that the cases pending in the United States Supreme Court, and in which the plaintiff was associate counsel, were test cases, and that certain firms in the city of New York (not directly connected with the then pending litigations) appointed the defendant, Barnes, their attorney in fact to present, prosecute, recover, and collect their several claims against the United States arising out of
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 any time agree to furnish the plaintiff with accounts or evidence of such claims. He also admits that he did not furnish the plaintiff with facts for the institution of proceedings, at law or otherwise, for the prosecution and recovery of the claims of the persons represented by him; and he specifically denies that he at any time agreed to furnish the plaintiff with any facts for the institution of proceedings, at law or otherwise, for the prosecution and recovery of said claims. The answer also contains, as a sefcond defense, a specific denial that the defendant employed the plaintiff in any manner to perform for him any professional or other services, or that the plaintiff has performed for him any service, professional or otherwise, or that the defendant is indebted to the plaintiff on account of the matters alleged in the complaint.
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 had 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 New York, or against the United States in the Court of Claims at Washington,
It appears from Mr. Carlisle’s testimony that the defendant himself made the proposition for 5 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 letter “the proposition which will hold us both.” And that letter becomes very important, because the defendant insists that it furnishes convincing evidence that a contract 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 for goods bought at 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 and you are to defray all necessary expenses incurred in the prosecution and collection of the claims, which will consist in the charges for printing and travelling expenses and such incidental expenses as may be connected with the business. Of course, this is a mere outline of the matter and if you desire to go on with it, we will prepare and sign a formal contract.”
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 make a contract or not, as he pleased. He had his locus pcenitentiae, 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 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 sug
After the decision of the Supreme 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 5 per cent., whether that amount is to be called strictly “compensation,” or the “value of the contract” or “profit.” Wake-man v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676. 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 seryices 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.