Leslie v. York, 112 Ky. 712

Leslie v. York

112 Ky. 712 | Ky. Ct. App. | 1902

Opinion op the court, by

JUDGE DuREWLE —

Reversing.

There is but one question necessary to the decision of this case, and that is the proper construction to be placed upon the word “recover” in the following contract of em> ployment: “I have employed Auxier & York to institute a suit in the Pike Circuit Court v. Schamberg for fraud in land sale, in giving falsely the number of acres; Now 1 agrete to pay them an amount equal to one-half they1 may recover, and if they do not recover ,1 am to pay them nothing. This May 10, 1892. James H. Leslie.” The claim of appellees against Leslie’s estate is for an amount.equal to one-half the amount of the judgment obtained October 11, 1900, by the personal representative of James H. Leslie, deceased, against M. Schamberg for $2,840. Various questions are made by appellants, but in the present condition of the case are not necessary to be, and are not, decided. For appellees it is insisted that in the contract quoted! “recover” means to obtain judgment; that the attorneys in such contract do not guaranty the solvency of the judgment debt- or, and that when they have recovered a judgment they have done all they are required to do to entitle them to compensation. In support of this contention they rely upon the case of in re Stratton, 15 Law J. Exch., 16, 14 Mees. & W., 806, in which it was held that in an undertaking by a solicitor to his client that., “should the damages or costs not be recoverable in this action, I shall charge you costs out of purse only,” the result of thfe action, and not the solvency of the defendant therein, whs referred to. We do not think this is a fair construction of the word “reco.ver” as used in this contract. The word “recover” is habitually; *715.and properly used in connection with the word “judgment.” .It is a perfectly correct use of the word to say that tha plaintiff recovered a judgment for a named sum. But in .this contract the agreement is to pay “an amount equal-to one-half they may recover.” It is not “an amount equal to one-half of the judgment they may recover.” “Recover,” as defined by Kinney’s Law Dictionary, means: “To obtain by course of law; to obtain by means of an action; to succeed in an action.” To the same effect is the definition in Anderson’s Law Dictionary. In the American & English Encyclopedia of Law (volume 20, p. 604) it is defined thus: “To recover in law is to recover anything, or the value therof, by judgment; as if a man’sue for any land, or other thing, movable or immovable, and have a verdict or' judgment for him. To recover is to obtain by course, of law. Recovery is the obtaining of a thing by the judgment of a court, as the result of an action' brought for the purpose; the obtaining of anything by judgment or trial at law.” In Webster’s International Dictionary the first definition given is: “To get or obtain again; to get renewed possession of; to win back; to regain.” So we seé that the primary meaning of the ■ word in common speech, and even when used as a word of art, implies the actual obtaining of the thing sought, and that the meaning which implies the mere obtaining of a judgment which gives a right to the actual possession of the thing sought is secondary, though the word may be so used, and the) context be so plain, as to show that the word was obviously used in its secondary meaning. The word has frequently — 'especially in contracts — been construed to bear its primary and popular meaning. In Strohecker v. Bank, 6 Pa., 41, the assign- or of a bond agreed to pay the amount of the bond with charges accruing to the assignee, “in case the same can not *716be recovered of the within-bound William Sherman.” It was held: “One of the technical definitions of the word ‘recovery’ is the actual) possession of anything, or its value, 'by judgment of a legal' tribunal, and it is not to be doubted that this is the sense in which the word was used in this Covenant.” So, in the case at bar, the obvious intent of the parties was that counsel shpuld have for tfheir services one-half of what was obtained by the suit. But for the champerty statute the contract would have been so expressed. Because of that statute the phrase was used, “an amount equal to one-half they may recover.” We are of opinion that the fair construction of the language is that Leslie was to pay an amount equal to one-half of what he actually obtained by the judgment, and not one-half of the amount of the judgment, which might or might not be worthless.

Inasmuch as such evidence as appears in this record indi-' cates the solvency of Schamberg, the judgment debtor, we have deemed it best to ignore the other questions raised and decide the main question argued, to the end that the rights of the parties may be adjusted without loss by unnecessary delay.

For the reasons given the judgment is reversed, and cause remanded, with directions for further proceedings consistent herewith.