Serat v. Smith

15 N.Y.S. 330 | N.Y. Sup. Ct. | 1891

Hardin, P. J.

When the agreement of July 12, 1883, was entered into by the parties thereto neither of them contemplated or foresaw' the possibility or probability of any other suit being necessary than the one which was then brought against the railroad company for the purpose of establishing the plaintiff’s cause of action against the company. Neither the terms of the agreement nor the surrounding circumstances indicate that either of the parties to the agreement supposed or expected there would beany difficulty in collecting the claim if judgment was recovered therefor. The exact language of the agreement relates to the action commenced on the 12th day of July, 1883. The words “if the suit is tried” and the words “this is the agreement made in this action” indicate an intent and purpose on the part of the contracting parties to deal with the action then instituted, and, as already stated, there are no words in the agreement referring to any other action, and the words used are restrictive to the action then instituted. We think the parties, in reducing the contract to writing, “defined their meaning by plain and unequivocal language,” and that it was “the duty of the court, and not of the jury, to determine and declare what that is.” Dwight v. Insurance Co., 103 N. Y. 342, 8 N. E. Rep. 654. In Brady v. Cassidy, 104 N. Y. 155, 10 N. E. Rep. 131, the rule which is applicable here is laid down by the court of appeals in the following language: “The rule is well settled that when the terms and language of a contract are ascertained, in the absence of technical phrases, the meaning of which is obscure, or the existence of latent ambiguities rendering the subject-matter of the contract uncertain and doubtful, the •office of interpreting its meaning belongs to the court alone.” In the case in hand we are unable to discover any technical phrases in the agreement entered into by the parties, the meaning of which is obscure, and we discover no latent ambiguities or anything in the phraseology used by the parties “ren■deringthe subject-matter of the contract uncertain and doubtful.” We therefore think the learned trial judge fell into an error when he refused as a matter ■of law to construe the agreement, and when he submitted to the jury the question as to whether or not it embraced by its terms the services rendered in the second action commenced by the defendants at the request of the plaintiff. Exceptions were taken to the charge and the refusals to charge clearly presenting the questions here. It is insisted in behalf of the respondent that there was some evidence of an oral understanding between the plaintiff ■and the defendants that there should be no charge for services in the second ■action. Plaintiff gave some evidence tending to support such position. However, the defendants’ testimony contradicts that of "the plaintiff. Besides, it ¡may be suggested that after a recovery of the judgment the defendants, in virtue of the agreement, having a lien or equitable ownership of one-third of the judgment, were to that extent interested in the proceedings to realize the -moneys upon it, and that circumstance may tend to support the theory of the plaintiff that the defendants undertook the subsequent proceedings under a fresh arrangement that there should be no charge for their services in the efforts to collect the judgment. And in that respect there was a question of fact for the jury to determine. If we could see that the verdict rested upon that issue, then, the error which we have- already pointed out might be overlooked; but it is not apparent that the refusal to rule upon the agreement as ■a matter of law, and the submission of its interpretation to the jury as a question of fact, may not have influenced or produced the verdict. The services rendered in the second action not having been embraced in the language of the agreement of July 12th, compensation therefor was not covered by the ¡sum which the defendants were entitled to receive under that agreement. If there was any agreement between the parties that the services should not be ■compensated for, if they were not embraced in the agreement, then the defendants were authorized to make a reasonable charge therefor, and, having ■charged $100 therefor, the question upon the trial was for the jury to determine whether that should be the limit of their right to compensation, notwithstanding the evidence given by several professional gentlemen that the ¡services were worth a much larger sum. However, it is quite apparent that the jury excused the defendants from paying the interest on the money while it was withheld by the defendants upon the supposition that the defendants were not aware of the residence of the plaintiff from the time they received the money, on the 10th of May, 1886, down to the time when they transmitted to him, in March, 1887; and it seems to be equally apparent that the jury ■came to the conclusion that the services in the second action were covered by the agreement of July 12th, and therefore they awarded the.plaintiff $100 withheld by the defendants, and the interest thereon.

2. We are of the opinion that no error was committed upon the trial in •submitting the question to the jury as to whether the statement made by the defendants in March, 1887, and the draft of $1,054, and the indorsement "thereon, were equivalent to a receipt in full for the balance due on the collection of judgment against the railroad company, and, upon all the evidence be-fore the court, we think no error was committed in refusing to charge that the plaintiff was bound by the indorsement on the draft transmitted to him by the defendants in March, 1887. In Ryan v. Ward, 48 N. Y. 207, it was said: “It lias long been settled in this state that a receipt furnishes mere prima facie evidence of the facts stated therein, and that it may be controverted or explained by paroi evidence. * * * This grows out of the fact that a receipt is not a contract. It is a mere declaration or admission in writing. * * * A receipt in full contains a declaration that a certain sum lias been paid in full of all claims of a certain kind, or of all demands. Neither kind of receipt embodies any contract. Both furnish only prima facie evidence, and are valuable only as such. Both are equally open to explanation or contradiction.” The last ease is cited approvingly in McKenzie v. Harrison, 120 N. Y. 265, 24 N. E. Rep. 458.

3. It is insisted in behalf of the respondent that the jury were “justified in finding that the defendants wrongfully withheld the plaintiff’s money with the intention of using the same so long as they could do so, and that their pretense, that they did not send it to him for the reason that they did not know his address, was only thought of when they were brought into a court of justice to respond in damages for their unprofessional conduct. ” When this cause shall again be tried before the jury the respondent can assert that position. We find little occasion to express any controlling views upon the subject. Apparently the defendants received information as early as the 24th of April that the court of appeals had affirmed the judgment, as on that day they served the attorneys of the railroad with notice that the court of appeals had ■affirmed the judgment; and on the 4th of May, 1886, served their bill of costs with a statement of the amount that was claimed, and on the 10th of May, 1886, delivered their receipt for the money received of the railroad company, to-wit, $2,108.19, which one of the defendants deposited in the bank to his own credit. Whether the defendants exercised good faith under the circumstances, and whether they should be relieved from the payment of interest from the 10th of May, 1886, until March, 1887, will be appropriate questions for the jury to consider; and bearing upon those questions the letter of April 28, 1886, may be considered. In their letter to the plaintiff one of the defendants states: “ Your case has been argued in the court of appeals. When it will be decided nobody can tell; only the court, and they won’t tell us. Will advise you when I learn.” It may be observed that we find this letter •quoted in the points of the respondent, and the first sentence thereof is made to read as follows: “Your case has been argued in the court of appeals.” Which is the correct version of the letter will undoubtedly clearly appear on the trial. Judgment reversed, and a new trial ordered in the county court of Chemung county, with costs to abide the event. Á11 concur.