112 N.Y. 419 | NY | 1889
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *422 Neither Manning nor Nickerson were partners of Koop in the contract sued upon, and the objection founded on that allegation of a defect of parties plaintiff is not well taken. They were merely agents or employes of Koop, whose services were to be rendered in his behalf and whose compensation was to be measured by an agreed proportion of the ultimate profits realized by the employer. The referee does not find, and was not requested to find, the fact of any such partnership, and there is no trace in the history of the reference of any such question raised for decision. There can be no doubt, even if we recur to the proofs, that Manning was but an agent and attorney of Koop, and I think the same thing is true of Nickerson. He was examined as a witness, and while he speaks of a joint interest with Koop it seems merely to refer to the measure of compensation; for he says explicitly, in stating his relation with Koop. "I had an agreement with him, and under that agreement I was employed to assist in the prosecution of the so-called Alabama claims." For the assistance rendered under that employment he was to have one-half of the profits realized by Koop, but no actual partnership, or intent to constitute that relation, is to be inferred from his evidence.
The further argument rests largely upon an idea that the writing signed by Koop and the firm of Carlile Co. was merely a power of attorney not coupled with an interest which ended and was revoked by the dissolution of that firm and the death of the surviving partner; and since nothing up to that time had been recovered upon the claim for war premiums paid, no right to compensation accrued to Koop, and he merely lost his services through a risk which he had taken upon himself. But the paper signed by the parties was something more than a power of attorney. That was granted as incidental to a complete contract for services to be rendered on one side and compensation to be paid on the *425
other. Carlile Co. had suffered through the depredations of rebel cruisers, launched or armed under the eye of a treacherous neutrality. Beyond the absolute destruction which followed, there accrued a ruinous increase in the rates of marine insurance. Restoration of their losses the firm were desirous to obtain from or through the Federal authority. They employed Koop to effect that object. Their contract was with him, his assigns and representatives, and it provided that for service in that direction, rendered and to be rendered, Koop should receive twenty-five per cent of the sum ultimately recovered. He entered upon the service. The claim was scheduled among those presented to the Geneva Tribunal, but was of a class rejected by its decision. But Koop, and those interested with him, pressed the equity of these claims upon the government until the act was passed, in 1882, which authorized their allowance. The surviving partner of Carlile Co. had died in 1880, but his death did not dissolve the contract. On one side, by its terms, it ran to those who might in the end represent Koop, and on the other beyond the death of the Carliles, if that occurred before the recovery was reached, for its terminus was a recovery or a final abandonment of the claim. By his services Koop had acquired an interest in the enterprise contemplated by the contract, and a right to continue its prosecution to reach and procure the compensation agreed. Nor did it end with the rejection of the claim by the Geneva Tribunal. A similar contention was held unfounded inLawson v. Bachman (
The reference to the provision of the act of congress, which prohibited any assignment or transfer of the claims presented to secure services rendered, has no application to the present case, for no such assignment was made or sought to be made. The ownership of the claim remained to the end in Carlile Co. and their representatives. The latter could, as they did, refuse to make Koop their attorney, and so prevent him from fully performing his contract. But he tendered that full performance, and a recovery having been had, he is entitled to the stipulated reward less the further expense incurred in making the final collection. That amount the judgment gives him, and we think there was no error in it.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.