Heller v. Kalisch — 141 A.D. 205

Majority

p. 205

Simon Heller, Respondent, v. Burnham Kalisch, Appellant.

First Department,

December 2, 1910.

Headnote

Attorney and client — contract of retainer construed — evidence — reasonable value of services.

An attorney at law before a claim was placed in his hands for collection wrote to the client the following letter: “If you wished to entrust the case to me I would require $250 to cover retainer and all expenses including §100, which you, as a non-resident, would be required to furnish as security for costs in the event that we lost. If we win, the §100 will be returned to you, so that §150 will cover everything. If we win, then I will leave it to you to determine the amount of compensation.” In an action brought by the client against the attorney to recover moneys retained by him for services rendered after a successful prosecution of the claim,

Held, that the letter constituting the contract between the parties did not limit the attorney’s compensation to §250, but on the contrary the amount of his compensation in case of success was left open for future consideration;

That it was error to exclude evidence offered by the attorney tending to prove the nature, extent and value of the services rendered as he was entitled to retain the reasonable value thereof.

Appeal by the defendant, Burnham Kalisch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1909, upon the verdict of a jury rendered by direction of the court, certain questions of fact having been submitted to them, and also from an order entered in said clerk’s office on the 21st day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Benjamin G. Paskus, for the appellant. ■

Bernard M. L. Ernst, for the respondent.

The. defendant, as an attorney, brought an action in the Supreme Court of this State to enforce' a claim which the plaintiff, a nonresident, had against a third party.. The action resulted in a judgment for the full amount claimed, which, .after the plaintiff had consented to reduce to a. certain amount, was paid. Out of. the amount paid the defendant retained a certain sum in payment for services rendered, and remitted the balance to the plaintiff. The plaintiff claimed he had fully paid defendant for the services rendered, and for that reason he liad no right to retain such sum, or any part of it, and after duly demanding, payment of the amount retained brought this action for conversion.

It seems, that immediately prior to the time the claim was placed in the defendant’s hands for the purpose of bringing an action thereon, he wrote the plaintiff a letter in which he stated: “ If you wished to entrust the case to me I would require $250 to cover retainer and all expenses including- $100, which you, as a non-resident, would be required to furnish as security for costs in the event that we lost. If we win, the $100. will be returned to you, so that $150- will cover everything. If we win, then I will leave it to you to determine the amount of co'mpensation.” The plaintiff contended at the trial, and this was the view entertained by the trial court, that the letter referred to constituted a complete contract between • the parties and fixed the compensation to which the defendant was entitled; and inasmuch as it was conceded that the plaintiff had paid the $250 mentioned, and was unwilling to pay any further sum, he was entitled to the balance, unless this agreement were subsequently modified. The defendant contended that after the claim had been placed in liis hands, there was an agreement by which he was to receive not exceeding twenty-five per cent of the amount recovered, and also that after the dispute arose as to the amount to be paid, the matter was submitted to a third party for arbitration, and he decided that, the defendant was justified in retaining the amount which he did; that in any event he was entitled to recover ■ the reasonable value of the services rendered; and that the letter to. which reference has been-made did not constitute a complete contract, inasmuch as the compensation to be paid in case of plaintiff’s success was left open for future consideration. During the course

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of the trial the defendant sought to prove the nature, extent and value of the services performed by him, but all testimony bearing on this subject was excluded Upon plaintiff’s objection, to which an exception was duly taken. The court charged the jury, to which an exception was also taken, that “ the pecuniary relations between the plaintiff and the defendant were at the outset fixed by the defendant himself ” by the letter referred to, and that he would only submit two questions to them, viz.: (1) To determine whether an agreement were entered- into between the parties subsequent to the receipt of the letter, by which the defendant was to receive in case of success a sum not exceeding twenty-five per cent of the amount recovered; and (2) whether, after the dispute arose between the parties as to the amount of compensation, the matter was settled by arbitration. Both of these questions the jury answered in the negative, and thereupon the court directed a verdict in favor of the plaintiff for the full amount claimed, and defendant appeals.

I am of the opinion that the court erred in holding that the letter, to which reference has been made, constituted a complete agreement between the parties. The whole letter must be read and construed together in order to ascertain its legal effect, and, when thus read, it is perfectly obvious that the amount -of compensation to be paid to the defendant, in case of plaintiff’s success in the action, was left open for future consideration; otherwise there is no meaning to . the* 1 sentence, “ If we win, then I will leave it to you to determine the amount of compensation.” The fact that the defendant stated he was willing to leave the amount to be paid to the plaintiff hiipself did not mean that the plaintiff could decide not to pay anything. That simply meant what a reasonable person, under similar circumstances, would pay. It is a general rule of construction that words, of a contract will be given a reasonable construction, where that is possible, rather than an unreasonable one (Schoellkopf v. Coatsworth, 166 N. Y. 84 ), and also that the court will endeavor to give a construction most equitable to both parties, instead of a construction which will give one of them an unfair or unreasonable advantage over the other. (9 Cyc. 587.) Defendant, therefore, should have been permitted to prove what he did, and what the services rendered were worth, and this amount he was entitled t.o recover, even though the jury found against him upon the two questions

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submitted to them. Plaintiff had had the benefit of the services, and was obligated to pay what the same were reasonably worth. The letter referred to did not excuse him from making such payment or limit the defendant to the amount asked for in the letter. •

The judgment and order appealed from, therefore, must be reversed and a new trial granted, with costs to the appellant to abide the event, of the action.

Ingraham, P. J.,. Clarke, Scott and Dowling, JJ., concurred. '

Judgment and order reversed, new trial ordered, costs to appellant to abide event. .