Harris v. Root

28 Mont. 159 | Mont. | 1903

MR. CHIEE JUSTICE PRANTLY,

after stating the case, delivered the opinion of the court.

1. The action of the court in sustaining the defendants’ objection to the evidence presents for decision the question whether the allegations in the complaint which we have stated in substance warrant recovery by the plaintiff. The complaint declares upon the contract, and unless it appears therefrom that the plaintiff’s intestate fully performed the contract on his part, or facts and circumstances are alleged justifying a failure in any particular, a recovery cannot be had. The contract is clear and explicit in its terms', and its construction involves no1 difficulty. To its language alone, therefore, must we look in order to find the intention of the parties. (Civil Code, Section 2203.) Taking it by its four corners; and giving to its words tbeir ordinary and popular sense (Civil Code, Section 2209), we find that Root and Coram undertook on tbeir part to1 pay tbe expenses of Mr. Ingersoll in any event, provided, of course, be performed tbe services stipulated for. Root was to pay tbe full amount of $100,000, in addition toi expense money, in case tbe will should be defeated, and be and bis clients should get tbeir shares. Coram ivas bound by tbe same undertaking, except that tbe amount be was to be personally liable for was in no event to exceed tbe amount received by bis clients, including. Root; that is, if they did not get anything, be was not to' pay anything beyond expenses. It is therefore clear that as to him tbe intention was that be should not be bound except upon tbe happening of two contingencies, to-wit, that tbe will be defeated, and bis clients actually get tbeir shares. In other words, tbe contest was to result in success, and tbe funds out of which only payment could be exacted were to be secured from tbe esp-íate of Andrew, I. Davis. Tbe duty to pay devolved upon him only upon tbe happening of these contingencies. There was included, also, tbe duty to devote tbe funds secured to¡ that purpose. If be should not secure them, be was not compelled to pay from bis own means. Tbe obligation of Root was exactly tbe same, except that, if tbe funds secured from tbe estate should not be sufficient, be became personally liable, for any balance. Tbe explanation why tbe contract was so made is manifest. Tbe will bad been offered to probate, and a contest bad been instituted by Root and Cummings which, if successful, would 'inure to tbe benefit of tbeir associates. If it should prove a failure, they would get nothing, because, under tbe terms of tbe will, tbe proponent would get tbe whole estate, except'the amount required to pay two1 or three small legacies. Coram was not "interested in tbe estate. He was willing, however, to become a party to the contract, provided be' could share in tbe result of a successful contest, and not be beld in case of failure. Mr. Ingersoll was willing to contribute to tbe enterprise his experience and ability, upon a contingency, provided his share was made proportionately larger; and he was willing to embody in the contract the provision that neither Hoot nor Goram should be liable, except upon a complete success- of the enterprise through a contest, and the actual receipt by the contestants and their associates of the shares to which they would thus become entitled. A judgment sustaining the contest would not be sufficient. The shares must be received.

Counsel for the defendants contended in the court below, and contend here, that this is the only construction of which the contract is susceptible, and that as the complaint itself shows that the contestants- and their associates succeeded by means of a compromise of the litigation, in negotiating which Mr. In-gersoll took part, instead of by-means of a contest, which Mr. Ingersoll did not conduct to- successful termination, the contract for the contingent fee was abandoned by the parties, and that a recovery against the defendants, if any may be had at all, must be upon a quantum, memit, for services other than those provided for by the contract. Counsel for plaintiff contends, however, that the compromise of the litigation by which the contestants obtained certain shares- was pro tanto a defeat of the will; that under the decree the defendants have received and will receive amounts largely in excess of - the sum due the estate of Mr. Ingersoll, and that in any event the procurement of a final decree settling the contest, and ascertaining the shares to which the contestants are entitled, though such decree was brought about by a compromise, was a complete discharge by Mr. Ingersoll of his obligations under the contract; and that his estate is entitled to recover on the contract

We agree with the contention of the defendants. An attorney, as such', has no authority to- compromise a controversy of his client, no- matter what may be'the difficulties involved, nor however advantageous the result may be to the client. A general retainer in a case does not imply such authority, and, if a compromise of the controversy be made, it must be made under special authority delegated for that purpose. Otherwise, and in the absence of a ratification by the client, the compromise agreement, as well as any judgment entered in pursuance of it, is void, at the option of the client. (Holker v. Parker, 7 Cranch, 436, 3 L. Ed. 396; Preston v. Hill, 50 Cal. 43, 19 Am. Rep. 647; 3 Am. & Eng. Ency. of Law, 2d Ed., 358; Jubilee Placer M’ng. Co. v. Hossfeld, 20 Mont. 234, 50 Pac. 716.) Nor is this rule, which is sustained’by the current of authority,' changed or modified in any respect by Section 398 of the Code of Civil Procedure. (Preston v. Hill, supra.) Mr. Ingersoll could not, therefore, under the contract, assume the authority to make any compromise of the contest. His duty required him to prosecute it, and he could not be held entitled to recover under his contract, short of a successful result of the controversy, followed by actual distribution to his clients. Additional authority was therefore necessary to this end, and, when this was conferred by his clients and accepted by him, there was a mutual abandonment of the contract; for the negotiations, were not included among his duties under the contract, and -when the compromise was consummated the contract could not be performed. This impossibility of performance was the result of the subsequent mutual arrangement between him and his clients under and by virtue of which the compromise was made. The services stipulated for under the contract were therefore never performed, and the contingent fee fi} be paid for them could not be recovered. The contract was entire, and nothing short of entire performance would authorize a recovery upon it. Nor would the. case have been different, had the compromise been effected without the aid or consent of Mr. Ingersoll, for, where the stipulation is for a contingent fee, no matter whether the rendering of the services is prevented by the client, or by circumstances over which he has no control, the measure of recovery by the attorney is the-value of the services actually rendered, and not the amount of the stipulated fee. These views, we think, are correct upon principle, and are sustained by the Weight of authority. (Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; French v. Cunningham, 149 Ind. 632, 49 N. E. 797; Western Union Tel. Co. v. Semmes, 73 Md. 9, 20 Atl. 127: Polsley & Son v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613; Agnew v. Walden, 84 Ala. 502, 4 South. 672; Pemberton v. Lockett, 21 How. 257, 16 L. Ed. 137; 3 Am. & Eng. Ency. Law, 2d Ed., 427, 431, and notes.) The allegations of the complaint fall very far short of showing an entire performance of the contract. The action of the court, therefore, was. correct in sustaining the objections to the introduction of evidence under the complaint, and in directing judgment upon the plaintiff’s failure to amend.

Motion to modify opinion denied May 18, 1903.

2. The first order made after entry of judgment, though in form an order vacating the appointment of a receiver, was equivalent to an order discharging, the receiver, and was properly made. The court had entered a final judgment. It had lost jurisdiction of the case, “except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had, looking to' a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal.” (Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829.) It was therefore the duty of the court to discharge the receiver, who, after entry of judgment, had no other functions to. perform. It necessarily follows that the court was also right in refusing to set aside the order just mentioned, and to retain the receiver pending appeal from the judgment.

The judgment and orders are affirmed.

Affirmed.