189 P. 1116 | Ariz. | 1920
Appellant, as plaintiff, administrator of the estate of George H. Neale, deceased, insti
“Now, therefore, in consideration of two thousand dollars ($2,000) in hand paid by the party of the second part to the parties of the first part, the receipt whereof is hereby acknowledged, and of the agreement of the party of the second part to pay nine thousand dollars ($9,000) conditioned as hereinafter provided, the parties of the first part do sell, assign, and transfer to the party of the second part, Ms executors, administrators and assigns, all rigiit, title and, interest which the said George H. Neale, or the parties of the first part, had or have in or to the said contract, and the said contract and all right, title and interest which the said George H. Neale, or the parties of the first part had or have in the said judgment or claim or the proceeds thereof.
“The party of the second part agrees that if the said judgment be affirmed, or if the Supreme Court should upon the appeal of the plaintiffs direct or render judgment for a larger amount than the amount of the present judgment, and collection be made upon said judgment from the estate of the said Costello, that the party of the second part will forthwith, out of that portion of the proceeds of the said judgment paid to him as attorney and counsellor at law as compensation for his services, pay the sum of $9,000, the said sum to be paid immediately and forthwith upon the receipt of such compensation by the said party of the second part, and the parties of the first part to have a lien and an assignment of the said proceeds to the extent of the said nine thousand dollars ($9,000).-
“If the said action should be compromised, then the said nine thousand dollars ($9,000) is to be paid in the same manner as if the said judgment had been affirmed.”
On the same day, to wit, May 20, 1913, the Cunninghams ratified and approved in writing the above sale and assignment of the Neale contract to Ives; the latter agreeing that, should the judgment be re
“It is hereby understood and agreed that said Ives shall have a lien upon any amount recovered by judgment or compromise, to the extent of 35 per cent agreed to be paid to him by virtue of these premises and the various contracts hereto annexed.”
After the exchange of these different agreements, there was considerable litigation. The Supreme Court ordered a new trial, which was had in due course. From the judgment a second appeal was taken, and the judgment affirmed in part and reversed in part. While in this status, the controversy was compromised by the defendants paying to plaintiffs the sum of $200,000. Before the settlement, Ives died, but his estate has been paid thirty-five per cent of $190,000; $10,000 having been deducted and paid to the Cunningham heirs, by mutual consent of all parties, before the $190,000 was divided between the Cunningham heirs and their attorneys.
These facts all appearing in the pleadings, the court overruled a demurrer to the defendants’ answer, and, upon motion of the defendant, entered judgment for the defendant upon the pleadings. The plaintiff appeals to this court, and assigns as errors: (1) The order of the court overruling his demurrer to the answer, and (2) the entry of judgment in favor of defendant upon the pleadings. Other facts appearing in the pleadings will be stated in the course of the opinion. The whole controversy revolves around the meaning that shall be given to the assignment of the Neale contract to Ives, dated the twentieth day of May, 1913. It is the contention
It seems to us the construction contended for by appellee is a rather strained, not to say an unnatural, construction of the contract liability assumed by Ives to the Neale estate. His learning and ability were of' a very high order. He knew when Neale died that Neale’s contract also died, and that the Neale heirs would be limited tó a quantum meruit for any services rendered by Neale in his lifetime. Sargent v. McLeod, 209 N. Y. 360, 52 L. R. A. (N. S.) 380, 103 N. E. 164. He therefore took an assignment thereof with the written consent and approval of the Cunningham, heirs who thereby became bound to pay Ives the fifteen per cent theretofore agreed to be paid Neale. His obligation to the Neale estate is well guarded and well stated in the contract of assignment. -As we read it, he bound himself to pay the Neale estate $2,000 cash and $9,000 later on, upon condition that the judgment already obtained for $125,000 or a larger judgment, should be collected. But if a less amount than $125,000 was realized out of the demand against the Costello estate, whether by judgment and execution or on compromise, then the $2,000 cash was to be the extent of his liability. And if the action should be compro
“In the event recovery is not over $80,000, I am to get $2,000; in any sum 'from under $100,000, $2,000; $100,000, $5,000; over $125,000 and under $150,000, $6,000; over $150,000 and under $200,000, $8,000; and if $200,000 or more, $10,000. In the event of any recovery I am to get $2,000 and the most I can get will be $10,000.”
The margin on fifteen per cent of $125,000, after deducting therefrom the $11,000 claimed to be due the Neale estate, is $7,750, and Ives’ liability to Oleary, under the above contract, would be $6,000, leaving an excess to Ives of $1,750. Upon the basis
Senator Ives might reasonably have felt that, since the burden of the litigation had fallen to him after Neale’s death, he was entitled, after paying additional counsel, to keep some portion of the Neale fee; but we feel that his general purpose — and we gather this from the contract — was to preserve to the estate of George H. Neale, his associate and brother lawyer, as much of the fruits of their common enterprise as he reasonably and fairly could. He certainly did not write into his contract so recently after his colleague had passed on, that he would pay his estate $9,000 in addition to the $2,000 cash in case the judgment for $125,000 was affirmed or a larger judgment was directed by the Supreme Court and collection thereof made, but that he would not pay the Neale estate the additional $9,000 in case be collected by compromise such sum or a greater sum. On the contrary, the contract explicitly says that—
“If the action should be compromised, then the $9,000 is to be paid in the same manner as if the judgment had been affirmed.”
Now, how was it to be paid if the judgment was affirmed? It was to be paid “out of that portion of the proceeds of said judgment paid to him (Ives) as attorney and counselor at law as compensation,” and the Neale estate was “to have a lien and an assignment of said proceeds to the extent of the said $9,000.” The same sum and the manner of its payment upon a compromise is definitely fixed in very plain language.
In all the contracts it was recognized that the proposed litigation might be terminated in three ways: (1) By judgment adverse to the plaintiffs; (2) by judgment favorable to plaintiffs; and (3) by com
Of course, we realize that the equities of the case could have no controlling influence if the contract, in plain and unmistakable language, fixed the amount the Neale estate was to receive at the sum of $2,000 cash paid, and we only refer to it for the purpose of emphasizing what seems to us quite obvious, to wit, that Senator Ives took an assignment of the Neale contract, not to speculate on, but to preserve something for the Neale estate.
Counsel for appellee cites us to the rules applied by courts in construing contradictory and ambiguous contracts. We have not discussed such rules for the reason that it does not seem to us that they have any application to this particular contract. The intent of the parties to a contract is controlling, and, unless there is some ambiguity in the language used to express that intent, rules of construction will not be resorted to. It would seem to us that the plaintiff was entitled to judgment on the pleadings. It was therefore error to overrule the plaintiff’s demurrer.
CUNNINGHAM, C. J., and BAKER, J., concur.