Western Union Telegraph Co. v. Semmes, 73 Md. 9

Western Union Telegraph Co. v. Semmes

73 Md. 9 | Md. | 1890

Bryan, J.,

delivered the opinion of the Court.

John E. Semmes and Prank P. Clark obtained a judgment in the Superior Court of Baltimore City, against the Western Union Telegraph Company. Both parties have appealed to this Court. We will state such of the facts as we deem material to the decision of the questions before us. In the year 1877, the Western Telegraph Company of Baltimore City filed a bill in equity against the Baltimore and Ohio Railroad Company. Eo proceeding was taken under this bill in behalf of the complainant. • Afterwards the plaintiffs in this suit, who are attorneys at law, were employed by certain stockholders in the said Telegraph Company, who held a minority of the shares of stock, to represent them in the suit; and they were also employed by the defendant, who held a majority of the shares of stock. An amended bill of complaint was filed in 1885, by the Western Telegraph Company of Baltimore City, and the defendants were the Baltimore and Ohio Railroad Company, the Western Union Telegraph Company and other parties. The object of the amended bill, as stated on its face, was to establish the absolute right and title of the complainant to certain telegraph wires, poles, and all their appurtenances, which had been erected on the line of the Baltimore and Ohio Railroad Company ; and also to establish its right to maintain said wires, poles, and their appurtenances as telegraph lines ; and to use and operate them as such ; and also to obtain an account from the Baltimore and Ohio Railroad Company of the sums of money, which it had received for the transmission of messages over said telegraph lines. The prayers for relief were adapted to these ends.

*18The defendant in this suit agreed to pay the plaintiffs as a contingent compensation, one-sixth of the amount which should he recovered for it, as a holder of the stock of the Western Telegraph Company of Baltimore 'City. The suit of this last mentioned corporation was isrosecuted against the Baltimore and Ohio Railroad Company and others until it was dismissed with costs, without prejudice. With the consent and approval of the defendant in the present suit, an appeal was taken to this Court; but before the cause was reached for argument, it purchased from the railroad'company all the property and interests which were in litigation. This , transaction being made known to this Court, inasmuch as no controversy any longer existed, an affirmance of the decree below was a necessity. 69 Md., 211. The plaintiffs contend that inasmuch- as they were ready and willing to prosecute the suit to a successful conclusion and were prevented by the act of the defendant, they are entitled to the contingent compensation. It was not stated to the Court in the appeal which we have just mentioned, hut it appears from the evidence in this case, •that when the purchase was made from the Baltimore and Ohio Railroad Company, it was agreed that the suit of the Western Telegraph Company of Baltimore City, should he dismissed. We do not regard this agreement as very material to any question here, as with or without such a stipulation the controversy was at an end. Undp uhtedly this defendant had the right to settle its suit whenever it saw fit; it has not been contended that it was obliged to carry on the litigation for the benefit of its counsel. And yet it must fulfil all the responsibilities arising from its contract with them. Where there is a contract for building a house or doing other work, and the plaintiff, being ready and willing to do the work, is wrongfully and improperly prevented by the defendant from completing it, he may certainly re*19cover as damages the difference between the contract price and the cost of doing the work when this cost can he- definitely computed; and the circumstances of the case may sometimes authorize additional damages. This was the view of the Supreme Court of the United States in Philadelphia, Wilmington and Baltimore Railroad Co. vs. Howard, 13 Howard, 344. But there is great difficulty in applying this principle to a contract for professional services, where the compensation is to he paid contingently on the successful prosecution of a suit. The law favors the settlement of litigation.. We should he most reluctant to say that public policy would sustain a contract, whereby a litigant should put it out of his power to compromise his suit according to his own wishes or interest. But in this case the contract in question does not admit of any such construction. There is nothing in its terms which interferes with the defendant’s unlimited control over its own litigation. Ror have we the means of ascertaining whether the plaintiffs would have brought the suit to a successful issue, if it had not been settled. That could be shown with legal certainty only by the judgment of the tribunal charged with the decision of the case. It is nothing to the purpose that the record is in this Court; the question must he decided on principles which would apply to any case. The plaintiffs could not maintain their position in this regard, without showing to the satisfaction of the juiy that they would have prevailed in the suit in question. Row can anything he more inconsistent with the settled principles of practice than to submit such a question to the finding of a jury? By what possible means, could they he informed what would have been the final decision in the suit? Was it within the competency of the Court below to examine the questions in the cause, and to instruct the jury authoritatively as to its result? Most certainly no tribunal had the authority to decide *20this question, except this Court where it was pending; and here, it would have been decided in the orderly and becoming course of justice, after argument, by counsel, and patient study and conference on the part of the Judges. We cannot consent to introduce into trials at the bar the embarrassment and confusion, which would arise from injecting into the bosom of another suit the questions which the law requires to he settled with such careful and cautious deliberation. But the law gives the plaintiffs an adequate remedy. Although the defendant had a right to terminate the litigation, yet the plaintiffs had rendered services to it, on the faith of a contract. It was not intended by either party that these services should he. gratuitous. It is not material to inquire whether they were useful to the defendant in facilitating its settlement with the Baltimore and Ohio Railroad Company. The plaintiffs’ rights do not depend upon this consideration. They had entered into a contract for services; in the prosecution of this contract they had performed work and labor, and were ready to carry it out to the end, when by the act of the other party, they were prevented from proceeding. We think that the law on this point is settled. In Rodemer vs. Hazlehurst & Co., 9 Gill, 294, the Court, quoting from Smith’s Leading Cases, said:

“ Where there is a special contract, and the plaintiff has performed a part of it according to its terms, and has been prevented by the act or consent of the defendant from performing the residue, he may in general assumpsit recover for the work actually performed, and the defendant cannot set up the special contract to deieat him. ” To the like effect is Bull vs. Schuberth, 2 Md., 57, where it is said: “ If the special agreement has been put an end to by the defendant, or the performance of it on the part of the plaintiff prevented by some act of the defendant; in all such cases the plaintiff may resort to, *21and recover under the common counts, for whatever may be due for so much of the contract as may have heen performed.” These cases are supported hy a vast amount of authority, and they announce a doctrine eminently just and reasonable. The Court below ruled t.hat the plaintiffs Were entitled to a reasonable compensation for the work and labor actually done hy them ; hut that they were not entitled to the contin gent compensation. Without reciting the prayers on the opposite sides, it is sufficient for us to say that this ruling disposed of the case with justice to both parties.

(Decided 1st July 1890.)

It will he seen that we have not thought it material to discuss the questions involved in The Western Union Telegraph Company vs. The Baltimore and Ohio Railroad Company, 20 Fed. Rep., 512. They are of considerable difficulty and nicety. Perhaps, the defendant in this case considered them doubtful; as before the employment of the plaintiffs, it had heen so advised by its original counsel; and doubts on this head may have caused it to make the settlement of the case. We do not find it necessary to make more than a passing mention of the opinion of this Court when the appeal was heard. 'It was distinctly declared that in consequence of the settlement, all contest was ended which concerned “the material such as poles, wires, etc., originally claimed as belonging to the Western Telegraph Company of Baltimore City.” 69 Md., 215. After this declaration, the Court proceeded to state its opinion that because of the decision of the Circuit Court of the United States in The Western Union Telegraph Company vs. The Baltimore and Ohio Railroad Company, the Western Telegraph Company of Baltimore City had no right to use these poles and wires as a telegraph line.

Judgment affirmed.