142 N.Y.S. 433 | N.Y. Sup. Ct. | 1913
Lead Opinion
This action is brought by a client ag’ainst his attorney to recover a balance of money had and received. The plaintiff had a claim against the Jewellers’ Safety Fund Society under a policy of insurance that he had unsuccessfully attempted to adjust. He retained the defendant, an action was brought and a recovery had in plaintiff’s favor. A dispute then arose as to the amount of defendant’s compensation, the plaintiff claiming that defendant had agreed to accept twenty per cent, of the recovery for his services and the defendant claiming to be entitled to thirty-three and one-third per cent, thereof. The defendant sent plaintiff a check for $1,025.35 upon which was written "Wolfe vs. Jewellers S. F. S. in full settlement. ’ ’ The letter accompanying the check stated ‘ ‘ In accordance with our agreement of last' evening I enclose my certified check for $1,025.35 in full settlement. Kindly sign the enclosed receipt in full as agreed.” The plaintiff retained the check but immediately wrote to the defendant that he would not accept it in full settlement and demanded the balance. Defendant thereupon wrote to the plaintiff “ You can not keep that check in view of the statement * * * that it was in full settlement in both letter and check, and claim a balance due you, because this is contrary to our agreement, contrary to the terms under which the check was sent and will be in accord and satisfaction.”
“ June 24th, 1911.
“ Eeceived of Mr. Wolfe $25- in the case of Wolfe vs. Jewellers’ Safety Fund Society, it being understood that I am to have in addition to said $25, 20% of any recovery in said case.
’’James F. Mack.”
The defendant claims that it was the understanding of the parties that this twénty per cent, was to be for any adjustment of the claim or collection thereof without action. If this were the fact he used very inept language to express the idea. The word “ recovery,” in law, means “ the restoration or vindication of a right existing in a person, by the formal judgment or decree of a competent court, at his instance and suit, or the obtaining by such judgment of some right or property which has been taken and withheld from him.” Black L. Diet. Therefore an attorney should not be allowed to urge that when he used the words “ recovery in said case ” he did not intend thereby that he should prosecute or even bring an action, but that he intended to only agree to collect by amicable negotiation without suit. The attorney claims that at about the time the complaint "was verified he told the plaintiff that he should claim a' reasonable fee, and again he testified that after he had collected the judgment he informed the client that he demanded one-
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
G-ebabd, J., concurs.
Dissenting Opinion
I cannot concur either in the conclusion arrived at by my learned colleagues or in the reasons ■ advanced by them in support thereof. Their decision is predicated on the erroneous assumption that the relations between plaintiff and defendant herein were merely fiduciary, and not contractual. The evidence shows just the contrary. Both plaintiff and defendant testified to the making of an express contract whereby plaintiff employed defendant to col-
On the following day, the defendant received from plaintiff a letter stating that plaintiff would not accept the said check in full settlement, but only on account, whereupon defendant wrote plaintiff as follows: ‘1 My letter to you of the 15th inst., enclosing said check was in full settlement, and requested you to send a receipt in full as agreed. My said check also bore on its face that it was in full settlement of the above case. Ton cannot keep that check, in view of the statement in my letter and the statement that it was in full settlement in both letter and check, and claim a balance due you, because this is contrary to any agreement, contrary to-the terms under which the check was sent, and it will be in accord and satisfaction.” This letter was dated May 17,1912, and plaintiff returned no answer thereto until June 8, 1912, twenty-four days later, when a letter was written by plaintiff’s direction to defendant, stating: “ Mr. Wolfe still has this check and declines to accept it upon the terms stated in your letter. ’’ Defendant did not answer this letter or a subsequent letter written by plaintiff to him. In my opinion, no further answer could be required from defendant after his letter of May seventeenth.
While conceding that this state of facts would make out a complete accord and satisfaction as between ordinary debtors and creditors, my learned colleagues have concluded, on the authority of General Fireproof Construction Co. v. Butterfield, 143 App. Div. 708, that the principle of accord and satisfaction does not apply as between attorney and client where the attorney has collected money on behalf of the client; that where an attorney collects money for a client, the money belongs to the client, and the attorney is only entitled to retain what he claims for his services; that in sending
In the case at bar we have not only a tender óf the check in full settlement, as shown by the endorsement on the face of the check, and the contents of the letter accompanying it, but a subsequent reiteration by the defendant that, if used, the check must be accepted in full settlement of the controversy. The decision of the learned Appellate Division, fourth department, in General Fireproof Construction Co. v. Butterfield, supra, is furthermore in direct contravention of the rule laid down in every recent decision of our highest court of review and of the Appellate Division of the first department, which it is our duty to follow.
In Dunn v. Whalen, 120 App. Div. 729, the principle of accord and satisfaction is applied where the at
“ Where a debtor offers a certain sum of money in full satisfaction of an unliquidated demand, and the creditor accepts and retains the money, his claim is cancelled, and no protest, declaration or denial on his part, so long as the condition is insisted upon by the debtor, can vary the result.” Fuller v. Kemp, supra.
“ If a demand is unliquidated, the acceptance of a part and án agreement to cancel the entire debt furnishes a new consideration, found in the compromise, which will support an accord and satisfaction. A demand is not liquidated, even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is du,e,
Proper deference for the views of our highest court of review and for the decisions of the Appellate Division of this first department requires an affirmance of the judgment in this case.
Judgment reversed and new trial ordered, with costs to appellant to abide event.