106 Wis. 168 | Wis. | 1900
The following opinion was filed January 9, 1900:
The assignments of error found in the brief of appellants’ counsel, made in conformity with the rule on that subject, do not correspond accurately with the divisions made by counsel in the argument that follows. In this opinion we will endeavor to follow closely such argument, instead of the assignments of error, thereby taking up in detail the reasons put forward to support the appeal.
It is first said that no engagement of either defendant as •attorney for plaintiffs was proven; that the correspondence between Fleming and William E. Yilas indicates clearly that no contract relations were entered into between the parties, and that care was taken to protect the representatives of the Yilas interest in the judgment from any danger of a •claim being made by defendants that they were authorized to represent it, by stating in the correspondence that any employment of attorneys to collect the judgment must be at the expense of Cain; that as there was no controversy in regard to what was said between Mr. Bundy and Mr. Yilas, it was the duty of the court to say as a matter of laiv
In testing the action of the trial court in submitting the case to the jury on the subject of whether contract relations Avere formed between plaintiffs, or their representatives or trustees, and defendants or Mr. O. T. Bundy, Avithin the principle stated, it must not be lost sight of that ambiguity of expression is one thing and ambiguity of meaning is another,— that words may be perfectly plain taken in their literal sense, yet, when applied to the facts, doubt arise as to the sense in which such words Avere used.' Obscurity, Avhich often springs from the consequences of a literal application of the plain, ordinary meaning of Avords in a contract to the subject matter of it, calls for the light which the settled rules of law shed upon the uncertainty of intention of the contracting parties, the same as when obscurity exists in the language of the contract itself. State ex rel. Heiden v. Ryan, 99 Wis. 123. So, if we say that the language used by Mr. Yilas and Mr. Bundy is plain and unmistakable, looking at the Avords used alone, yet if the intent the literal sense of the words indicates be doubtful when such Avords are applied to all the facts leading up to and characterizing the negotiations between the parties, and the apparent interpretation which both.parties gave to their language afterwards, that presents a question for solution by a jury.
Looking at the action of the court in submitting the question above discussed to the jury, assuming that Mr. Yilas possessed authority to bind the plaintiffs or their interest in the Cain judgment, in the light of the evidence it is considered that if error was committed it was in favor of the appellants. Mr. Bundy and Mr. Fleming, prior to the conversation between the former and Mr. Yilas, under agreement Avit-h Cain, performed valuable services to the end that the judgment might be collected. The representatives of
Yol. 106 — 12
Much significance is given, in the brief of counsel for appellants, to the testimony of Mr. Bundy that he did not expect compensation for his services under the contract with Mr. Yilas except in the event of success in collecting the judgment, it being argued that the only contract claimed is one by mere implication, and that such a claim is too unreasonable to admit of its being based on such a meeting of minds of the alleged contracting parties as to satisfy the essentials of a contract, because the compensation was, according to Mr. Bundy, left contingent. To find the existence of a contract to perform legal services for a contingent fee by implication is called the height of absurdity. The infirmity in the argument of counsel at this point is that the contract upon which the recovery appealed from was had was not an implied contract, but was an express contract. If the language used by Mr. Yilas to Mr. Bundy, and the latter’s assumption of the responsibility of caring for plaintiffs’ interest, made a contract at all, there was nothing left by it to implication, but that the services to be rendered by Mr. Bundy should be a subject for compensation absolutely or contingently. The fact that Mr. Bundy assumed that his compensation would be contingent does not appear to be so passing strange as claimed, since the judgment was considered of doubtful value and attorney’s fees from the start had been contingent upon success. When Mr. Levi M. Yilas put the claim into judgment his fees were contingent
A further point is made that Mr. Yilas, being attorney for plaintiffs and guardian for such as were minors, did not possess authority, as such, to bind them, therefore the contract, if one was made, was not plaintiffs’ contract. The one sufficient answer to that is that Cain’s assignees were the two Yilases and Mr. J. W. Lusk as trustees .for plaintiffs. The legal title to a one-half interest in the judgment was transferred to the assignees for the benefit of plaintiffs, with a power in trust of absolute control over the entire judgment. The title of the assigned interest in the judgment did not pass to the two Yilases and Mr. Lusk in their capacity as administrators and representatives of the plaintiffs, and then to the plaintiffs in the general assignment of the Yilas estate at the close of the administration period. The words of the assignment,- it will be noted, are, “ to William F. Yilas,” etc., “ administrators,” not to them as, or in their capacity as, administrators. According to well-settled rules governing the construction of such instruments, there being no clear indication that the parties described as administrators took in their representative capacity, the word “ administrators ” is to be regarded merely as descriptive of the persons. Robbins v. Gillett, 2 Pin. 439; Randolph, Comm. Paper, § 440. In the assignment under consideration there is nothing to indicate that the assignees took title to an interest in the judgment other than as trustees to retain it till a collection
From what has been said it will be seen that ample authority existed for Mr. William F. Yilas, with the consent of his co-trustees (and it should be said in passing that it appears that such co-trustees acquiesced in whatever he did), to employ attorneys to collect or aid in collecting the judgment; and that the ruling of the court, sending to the jury the question of whether a contract was made between Mr. Yilas, on behalf of plaintiffs, and defendants, or one of them, if erroneous at all, was not prejudicial to appellants. So the motion for a general direction of a verdict in appellants’ favor was properly denied.
But it is said that plaintiffs were entitled to a verdict for the money paid to R. E. Bundy, $450, in any event, because,, if Mr. O. T. Bunckj was engaged as attorney, such engagement did not carry by implication authority to employ other attorneys at the expense of plaintiffs. That is true. The court so instructed the jury. But it is just as true that an attorney may, at his own expense and risk, employ an as
Complaint is made because the court did not confine defendants’ right to compensation to the specific amount left to them after paying the assistant, Robert E. Bundy. At the same time, if the relation of attorney and client existed between defendants or either of them and plaintiffs, the right to compensation for all services rendered by reason of such employment, whether performed by the principals or principal, or their subordinate if there was one, is conceded. The mere form of making up an account is not binding between parties, and, if it were, no account was rendered by defendants or either of them charging a specific sum for their fees or the fees of either of them, and a further fee for services rendered plaintiffs by R. E. Bundy. We find no evidence to that effect. On the contrary it appears that the accounts rendered were to the effect that the charge for attorneys’ fees to the Yilas interest under the engagement of Mr. Bundy for plaintiffs, was $1,000. The account indicat-' ing payment of $450 to R. E. Bundy out of plaintiffs’ money was constructed by counsel from information obtained by him in an interview with Mr. Fleming. Mr. Bundy, who rendered all the accounts to such counsel, claimed from first to last that $1,000 was charged plaintiffs for services rendered under the engagement made by Mr. Yilas of him as their attorney. No claim was made against plaintiffs, or any one representing them, by R. E. Bundy directly or indirectly, and no charge was made against the collected fund on account of any such claim; but there was a claim made by R. E. Bundy against defendants for services performed by him for them, which was paid, not out of plaintiffs’ money, but out of defendants’ money, if they or either of them were entitled to compensation for professional services rendered in behalf of the Yilas interest in the judgment to an amount equal to their claim of $1,000; and the case was
A further claim is made that money was paid to Fleming for legal services out of the funds belonging to the plaintiffs, and that such money should be returned because the evidence shows that if any engagement was made by Mr. Yilas, of an attorney for plaintiffs or in behalf of their interest in the judgment, it was of O. T. Bundy only, and that the court erroneously instructed the jury that money paid to Fleming could be absorbed by charges for services rendered by Mr. Btmdy pursuant to his employment. The instructions on this point are as follows: “ If the value of the services which were rendered by the defendant Bundy after the relation of attorney and client commenced between him and the plaintiffs, upon the theory that you shall find it did so exist, were of a sum equal to that charged independent of the sum paid to Mr. Fleming or other attorneys, or of the services rendered by the defendant Fleming, then it is immaterial, so far as this action is concerned, whether Mr. Fleming was engaged or not or the value of the services rendered by him, so long as no part of such payment came out of the portion of the money properly coming to the
Much harsh criticism of the circuit judge’s instructions on this branch of the case was indulged in by appellants’ counsel, but after carefully going over the matter we fail to see that it is justified by the record so far as the legal question involved is concerned. If Mr. Bimdy made a contract with Mr. Yilas, binding upon the plaintiffs or their interest in the Cain judgment, he was entitled to charge against the collected fund the reasonable value of the services rendered pursuant thereto. There can be no doubt about that. The jury were so instructed. If, as between Bundy and Fleming, the entire amount earned in collecting the judgment ivas treated as a fund in which they were equally inter
The contrary theory advanced by appellants’ counsel may be illustrated by the following: If A., of the firm of A., B. & 0., be employed by D. professionally, and the three labor together, B. and 0. being subordinate to A. in carrying out the object of the employment, A. being the only person having a legal right to compensation therefor, and the person by whose direction and subordinate to whom B*. and 0. join in performing the professional task, when the contract of employment is ended D.’s liability is limited to the value-of the*services rendered by A. personally, though the value of the entire service undertaken by him and actually performed by him directly or indirectly be three times that amount; and if the entire value of such service be retained out of money lawfully in A.’s hands, and treated as between himself and associates as a fund for equal division, the money distributed to B. and 0. is D.’s money and the three are liable in trover for the conversion thereof. We'are unable to-sanction that as good law. It is contrary to elementary principles and cannot and ought not “ to prevail in a tribunal of justice.” We think the- jury were plainly told in effect by the trial judge, in the instructions under consideration, that if Bundy's labor was reasonably worth the amount retained for professional services, out of the money col
The last point made is that plaintiffs were entitled at least to recover the amount charged to their interest for Cain’s board, $161.25, and that the instruction requested to that effect was erroneously refused. If Mr. Buncly was employed as attorney for the Yilas interest, and the jury found such was the case, it included power to do those things reasonably necessary, or reasonably supposed by him to be necessary, from a professional standpoint, to carry out the object of such employment. That an attorney may, as incident to professional employment by a client, incur reasonable expenses in conducting the matter under his charge, cannot be doubted. So the only question on this branch of the case, in view of the finding against plaintiffs on the main issue, was whether, under all the circumstances, there was evidence tending to show that defendants were warranted in believing, when the expense of Cain’s board was incurred, that it was necessary to a prudent administration of their professional employment to collect the judgment. The idea advanced by appellants’ counsel, that the disbursement was improper as to appellants because their attorney, Mr. Yilas, neither authorized nor had notice of Cain’s board being an expense in the litigation, is not material to the issue of whether the disbursement was proper as an incident to professional employment. An attorney is never bound to acquaint his client in advance with the necessity of mak
The evidence is uncontroverted as to the facts stated. Just how to treat the matter in that situation seems to have troubled the trial judge. The charge was properly deemed of an extraordinary character and not allowable in the absence of peculiar circumstances showing clearly that it was justified thereby. Evidently the judge thought at first that the question, on the evidence, should be disposed of as a matter of law one way or the other. So far as the right to incur the expense as an incident to professional employment was concerned, he said to the jury that the expense should not be allowed unless, when it was incurred, it was clearly necessary. lie further indicated that the evidence did not sat
It seems clear that there was evidence admitting of a reasonable conclusion of fact that such expense was proper as a disbursement in the litigation, so the instruction to find for plaintiffs as a matter of law was properly refused. It seems equally clear that the issue of fact of whether such expense was chargeable in part to the .Yilas interest, assuming that defendants or Mr. Bundy was authorized to represent, professionally, such interest in the litigation, was taken from the jury without objection. We having reached a conclusion that the circuit judge did not err in refusing to take the controversy as to such expense from the jury in appellants’ favor, and that there was evidence admitting of a conclusion that such expense was properly incurred by the attorneys as an incident of their professional employment, the whole matter is closed in respondents’ favor for the purposes of this appeal, because, as indicated, whether the subject was properly taken from the jury is not before us.
There are some other questions discussed in the brief of appellants’ counsel, all of which have received consideration without disclosing any sufficient reason for disturbing the judgment. Such other questions are not deemed of sufficient significance, in view of the conclusions reached on the matters particularly referred to in this opinion, to warrant discussing them in detail.
By the Court.— The judgment of the circuit court is affirmed.
The motion was denied March 20,1900.