42 W. Va. 638 | W. Va. | 1896
John E. Fisher, for the use of W. IT. Fisher, brought an action of assumpsit in the Circuit Court of Upshur county on the following written contract: “Whereas, John S-Fisher has been heretofore employed by me to prosecute a suit against James L. Smith and Floyd G-. Smith for assault and battery, and said suit is now pending in the Circuit Court of Upshur county, I agree and bind myself to pay to said Fisher for his services rendered and to be rendered in Baid suit a certain fee of fifty dollars, now due, and to pay said Fisher in addition fifteen per cent, of the damages which I may recover in said action. Witness my hand this 10th day of November, 1886. Chas. E. Mylius.” The is
In the case of Powell’s Adm’x v. Powell, 84 Va. 415 (4 S. E. 744) the word “recover,” used in a statute, was held to mean “receive;” that is, the actual receipt of money, and not the mere entering of a judgment therefor, even though the money be.paid without judgment. And in the case of Strohecker v. Bank, 6 Pa. St. 41, it was held that “one of the technical definitions of the word ‘recovery’ is the actual possession of anything, or its value, by judgment of a legal tribunal;” the syllabus being: “A guaranty in an assignment on the back of a bond in these words, ‘And in case the same can not be recovered of the within named W. S., then I promise and agree to pay the amount thereof, together with all charges thereupon accruing, into the Farmers’ Bank of Beading, or their assigns,’ is a covenant that the obligor is able to pay, and that the bank, by using due diligence, shall receive the money.” In the present case the attorney was to receive a fixed fee of fifty dollars, and in addition thereto was to have a contingent fee of fifteen per cent, of the damages recovered. The meaning of this language is plain and unambiguous, and that is that the defendant, out of the moneys received by him by reason of