Jenkins v. Hooker

19 Barb. 435 | N.Y. Sup. Ct. | 1854

By the Court,

Harris, J.

The act of congress providing for . the pension in question declares, that the pay thereby allowed shall not be in any way transferable, but shall enure wholly to the personal benefit of the soldier entitled to the same. (4 U. S. Statutes at Large, 530; Act of June 7,1832.) If it be true, therefore, that the agreement between the plaintiff and the intestate was, in legal effect, an equitable transfer or assignment of a part of the soldier’s pension, or, if it is to be regarded as an executory agreement for such transfer, it is void. It is the established policy of our government that its pensions shall be received by those to whom they are granted, and no agreement which has the effect to evade the law, or contravene its policy, can be sustained. It becomes important, therefore, to inquire whether this is such an agreement.

The intestate believed that he was entitled, under the act of 1832, to an increase of his pension. To obtain it, the government must be furnished with the proofs required by the act. It was competent for the intestate to employ the plaintiff to perform this service for him. If he did perform it, he was entitled legally and morally to be paid for such service. It was competent for the parties to agree, beforehand, upon the measure of such compensation. They might agree, too, that the compensation should depend on the plaintiff’s success in prosecuting the claim; that in case of failure he should have nothing for his services ; while, if he succeeded, his compensation should be greater than, under other circumstances, might have been deemed reasonable. These are propositions which no one will dispute. Does the contract in question amount to any thing more ? The plaintiff, at the request and on behalf of the intestate, had undertaken to institute measures to obtain the increase of pension. If he should fail in his efforts, he was to go unrewarded; but if he succeeded he was to receive for his services “ one third part of the whole amount of such increase.” The effect of the agree-" ment was to fix the measure of compensation, if the plaintiff should become entitlód to compensation at all, by a standard not yet ascertained. It was to be a sum equal to one third of' another sum not yet known. I know of no legal objection to such a contract. ■ Certainly it is no uncommon thing.

Suppose that, instead of stipulating that the compensation should be one third part of the amount allowed, it had been fixed at $571.08, the amount of the verdict, would any one question the validity of the agreement ? The parties, if capable of contracting at all, might agree upon the amount of compensation. They might also agree that the question of compensation should depend upon a contingency and then, again, that the amount should depend upon another contingency. As I understand this agree- • ment, it provides for nothing more. It gives to the plaintiff no interest in the pension, either legal or equitable. It provides for no transfer or assignment. If the pension should be allowed, the pensioner himself, or his representatives, alone could receive it. Whether received or not, the pensioner, the moment the increase was allowed to him, became the debtor of the plaintiff in a sum equal to one third of its amount. The plaintiff had no claim upon the pension, the allowance of which he had thus obtained, for the payment of the amount due him upon the agreement, any more than any other creditor. Upon the death of the pensioner, his debt, like any other debt, could only be collected through a legal course of administration. He was to take his chance of payment with other creditors. The agreement fixed the amount in which the pensioner was to become indebted to'the plaintiff for his services by the amount of the pension to be allowed, but it gave him no lien upon it. He had no security for his debt, beyond any other creditor.

[Albany General Term, February 6, 1854.

Wright, Harris and Watson, Justices.]

There is nothing in this agreement which can render it void for maintenance. It has no reference to any suit pending or to be commenced, and without this there can be no maintenance. (Thallhimer v. Brinckerhoff, 3 Cowen, 623.)

The verdict, too, is sustained by the evidence in the case. Every thing that was done to obtain the allowance of the pension, was done through the plaintiff’s agency. Mr. Sylvester, who acted on behalf of the plaintiff before the commissioner of pensions, testifies that there were no papers before the commissioner when the claim was allowed except those furnished by him. The only papers furnished by the defendant through the agent he employed were a power of attorney authorizing that agent to act, and the proof of the death of Hilbert Hooker, and even these were received at the pension office after the claim had been allowed. There can be no doubt, therefore, that the plaintiff performed the contract on his part by obtaining the increase of pension. • There was no evidence to warrant the jury in finding that the increased pension was only obtained by means of the services of other agents employed by the defendant, or that the plaintiff failed to render all the services which were necessary to obtain the allowance. Had these questions been submitted to the jury as requested by the defendant’s counsel, and the verdict had been in favor of the defendant, it could not have been sustained. There was no evidence to support it. It was therefore right to refuse to charge as requested upon these points.

The motion for a new trial should be denied.