143 Va. 768 | Va. | 1925
delivered the opinion of the court.
On the 5th day of January, 1921, South Norfolk, prior thereto a town in the county of Norfolk, Virginia, became a city of the second class by virtue of an order of the circuit court of Norfolk county, pursuant to section 2975 of Virginia Code.
At a meeting of the common council of that city, held on September 1, 1921, W. L. Devany, Jr., was appointed city attorney for a period of one year, beginning September 1, 1921, at a salary of $600.00 per year, and on September 2, 1921, he was notified of his appointment by a letter from the city clerk. He immediately entered upon the duties of the office and received the stipulated compensation.
Section 2902, Virginia Code, provides that when a town becomes a city, it shall assume and provide for the reimbursement of the county of a just and reasonable proportion of any debt of the county existing at the
Section 2903, Virginia Code, provides that in event the parties fail to make such adjustment and fail to agree upon such terms, either may proceed against the other by a bill in equity for a proper adjustment of the matter in the circuit court of the county.
On the 23rd day of December, 1921, there was a joint meeting of the finance committee of the board of supervisors of Norfolk county, together with the attorney for the Commonwealth, with a committee from the city council of the city of South Norfolk, together with W. L. Devany, Jr., the attorney for the city of South Norfolk. The county treasurer gave a detailed statement of the outstanding bonds of the county amounting to $1,175,000.00 (of which $525,000.00 were what are known as ferry bonds) on which the city of South Norfolk would be liable for its pro rata share. The liability of the city for the ferry bonds is the subject out of which this litigation arose. In the discussion of the matter the county contended that the city of South Norfolk was liable for one eighth (1-8) part of the bond issues, its proportionate part according to its population.
A copy of the minutes of this joint meeting was sent to Devany who was at the meeting of the council of the city of South Norfolk, held on January 3, 1922, made his report, and the resolution with reference to the matter of the ferry bonds was passed. The minutes and resolution are here copied in full, as upon its construction the difference between the parties has arisen.
“City Attorney W. L. Devany, Jr., reporting in the
The next day, January 4, Devany wrote to Harry K. Wolcott, Esq., to associate him as counsel, provided his fee was satisfactory. In the letter he requests to know what the fee would be in event they won the suit or were to lose it; suggesting that if adjudicated favorably to the city it would expect to pay more. Wolcott replied that he should receive a cash retainer of $500.00, and at the end of the controversy or any litigation growing out of the same, a contingent fee of five per cent, of any amount that we are able to save or recover for the city.
Devany reported the employment of Wolcott at the $500.00 retainer and five per cent, of what was saved to the city, with the opinion that the fee was reasonable as the litigation would be lengthy and the case go to the Court of Appeals. At the request of Devany his fee was fixed at the same as Wolcott’s. The council paid the retainer to each of them, whereupon they prepared a bill in equity against the county of Norfolk to be filed. ■ But before this suit was commenced the county abandoned any claim to contribution on account of the ferry bonds; after which an agreement was prepared which was satisfactory to both parties.
Devany made demand upon the city for $3,648.43, five per cent, on $72,968.75, one-eighth of the ferry
While there are several errors assigned by the plaintiff, in reality the issue is very clear cut; and that is whether the plaintiff was employed to adjust the matter of the ferry bonds between. the city and county, or to bring suit for the adjudication of the rights of the parties. The language'of that part of the resolution of January 3, 1922, which employs the plaintiff is “further that the city attorney be employed to proceed with the matter of adjustment, and that he shall receive, according to his discretion, a fair fee and retainer for such service.”
After the evidence was concluded, the plaintiff asked the court to instruct the jury as a matter of law that the plaintiff was employed to adjust the matter of the ferry bonds, and if he performed the service they should find for him, but the court refused to give his instruction, and gave an instruction which left to the jury to decide from all the circumstances of the case whether the plaintiff was employed to bring a suit, and his compensation was for that service alone. The jury found for the defendant and the plaintiff
It is true that where the language to be construed is unambiguous its construction is a matter of law for the court, but where, considered along with other parts of the instrument, its meaning is uncertain, then the situation of the parties and the subject matter,- and the construction placed upon it by the parties, especially the plaintiff, are matters of fact to be submitted to the jury, with the writing, for construction under proper instructions.
The procedure for the adjustment of the indebtedness between the county and city in this case is statutory as set forth in section 2902 of Virginia Code. The condition to the appeal to the court provided for in section 2903 is the failure to reach the agreement between them. It does not clearly appear from the minute of the council whether that body considered the right to an appeal to the court had arisen, but from Devany’s account it appears he did at the meeting on January 3rd, as shown by the record (Devany whose duty it was to advise the city council and assist in the adjustment), ask to be paid extra for court work. Then follows the motion to demand one-eighth interest in the ferries and if not granted, to proceed to have their rights adjudicated. Without condition, the resolution then empowers the city attorney to proceed with the adjustment and to receive such fee and retainer as in his discretion is reasonable. The next day he proceeds to employ associate counsel to assist in the litigation for a 1500.00 retainer and a contingent fee of five per cent of the amount saved the city. He reports this contract to the council as reasonable in view of the protracted litigation in prospect,
Giving the legal definition to retainer, that is, “the act of a client by which he engages an attorney or counsellor to manage a cause either by prosecuting it when he is plaintiff or defending it when he is defendant,” S. Bouvier’s Law Diet. 2948, and construing the balance of the sentence, “five per cent of the amount saved your city and which may also be recovered from the county for you” with the cash retainer, the contingent fee of five per cent of the amount saved, etc., was superadded compensation to be paid for services in the conduct of the prospective suit to a successful conclusion for the city before any further compensation was due.
The county of Norfolk abandoned any claim to the assumption by the city of any part of the ferry bonds before the suit was commenced. The Commonwealth’s attorney testified that he never intended asserting any claim for the ferry bonds, because the Court of Appeals had, in 1918, settled that matter between Portsmouth and Norfolk county. Whether the claim was abandoned voluntarily or after conference, gives the plaintiff no right to the contingent fee, as the very object of the retainer was to cover such contingency.
There was no error in the court in refusing the plaintiff’s instruction and giving those asked by the defendant, nor in entering judgment upon the verdict of the jury, as it was amply warranted by the evidence.
The defendant city filed a plea of set-off to recover back from Devany the $500.00 retainer paid him. The jury found against the city on its plea, which the circuit court approved, and we think it was
The verdict of the jury was fully warranted by the evidence and the rulings of the circuit court were without prejudicial error to either party, therefore, its judgment will be affirmed.
Affirmed.