13 N.J. Misc. 295 | N.J. | 1935
The opinion of the court was delivered by
The appeal is from a judgment of $478.02 and costs entered on a jury verdict in the District Court of the
“Dear Mr. Hartshorne:
This will confirm my conversation with you in reference to your fees in the case in which I am the plaintiff, and the Pitkin Memorial Hospital is the defendant now on the list for trial in the New Jersey Supreme Court in Monmouth county.
Pursuant to our conversation, I hereby authorize you to deduct from whatever money you recover in this suit, 25% to cover your fees and disbursements. The understanding being that you are to conduct the case to its conclusion, and if the judgment is recovered to take such further steps as you may deem necessary to collect the money due thereon, whether in the law courts or in the Court of Chancery if the same should be necessary. Also that in the event of an appeal from the judgment of the law court, you will conduct the appeal without cost to me other than the $100 retainer which yon have heretofore received and which is to be yours in addition to the 25%.
Yours truly,
I hereby accept the retainer as above stated.
¥m. Haetshoene."
The above mentioned judgment was affirmed by the Court of Errors and Appeals on the appeal.
Appellant’s first point is that the contract as construed by the plaintiff is void because against public policy. Plaintiff construed the contract as an undertaking by the defendant to pay the costs and disbursements of the appeal without contribution from the plaintiff except as set forth in the contract. And that, for the purpose of this point, must be understood as the bargain. The argument is that the con
Further, we consider that the agreement as so construed is not so much against public policy as would be the act of the attorney in violating a compact with his client to the latter’s disadvantage after the event against which it was directed had transpired.
The second and remaining point presented by the appellant is that the written contract was not ambiguous and therefore should have been construed by the court and should not have been submitted to the jury for interpretation. The point rests upon the following portion of the judge’s charge to the jury: “It is the province of the court to determine the effect of a contract as a matter of law, but if the contract by its terms is ambiguous, it is the province of the jury to determine its effect.” The harm which appellant urges was suffered by him as a result of this charge is that the contract was submitted to the jury for interpretation.
Where there is no ambiguity in a written contract, it is the province of the court and not of the jury to determine its meaning (Albert v. Ford Motor Co., 112 N. J. L. 597; 172 Atl. Rep. 379), but when the construction of a written instrument depends upon extrinsic facts, as to which there is a dispute, its construction is a mixed question of law and
The judgment below will be affirmed, with costs.