Hodges v. Grapel — 21 N.Y. St. Rep. 845

Majority

p. 845

N. D. Carlisle Hodges, App’lt, v. Phebe A. Grapel, Resp’t.^[1]

(Court of Appeals,

Filed March 5, 1889.)

Headnote

1. Contract—Of employment—Construction.

The firm of Carlisle & Son had suffered through the depredations of rebel cruisers. Restoration of their losses the firm were desirous to obtain from or through the federal government, and they employed Koop as their attorney to effect that object, and in consideration of his services rendered, or to be rendered, it was agreed that Koop, his legal representatives and assigns, should be entitled to receive a certain compensation based upon the amount ultimately collected and recovered. Koop entered upon the service and presented the claims to the Geneva tribunal, but they were there rejected. In 1880 the surviving partner of the firm of Carlisle & Co. died and Koop tendered his services to the administratrix, but she refused to accept them and employed other counsel. In 1882 the act was passed which authorized the allowance of the claims. Held, that the writing signed by Koop and Carlisle & Son was not a mere power of attorney which was ended and revoked by the death of the surviving partner of the firm of Carlisle & Co., "but was a complete contract, by its terms running to these who might represent Koop on the one hand, and on the other beyond the death of Carlisle, if that occurred before the final recovery was reached, and that Koop, by his services, had acquired an interest in the enterprise and a right to continue its prosecution to reach and procure the stipulated reward.

3. Same—When contract not chanced.

Held, that the rejection of the claim by the Geneva tribunal did not make its prosecution against the United States government the presentation of a new claim, other and different from the one covered by Koop’s contract.

3. Same—Tender of full performance—Damaces.

Where Koop tendered his services to the administratrix for a full performance of the contract, and she refused them, Held, that upon a recovery being had Koop was entitled to the stipulated reward, less the further expense incurred in making the final collection.

p. 846

Appeal from a judgment of the supreme court, general term, first department, affirming a judgment and confirming the report of a referee, and from an order denying a motion for a new trial.

T. D. Hodges, for app’lt; H. G. Atwater, for resp’t.

Neither Manning nor Nickerson were partners of Koop in the contract sued upon, and the objection founded on that allegation of a defect of parties plaintiff is-not well taken. They were merely agents or employees of Koop, whose services wrere to be rendered in his behalf and whose compensation was to be measured by an agreed proportion of the ultimate profits realized by the employer. The referee does not find, and was not requested to find,, the fact of any such partnership, and there is no trace in the history of the reference of any such question raised for decision. There can be no doubt even if we recur to the proofs that Manning was but an agent and attorney of Koop, and I think the same thing is true of Nickerson. He was examined as a witness; and while he speaks of a joint interest with Koop, it seems merely to refer to the measure of compensation; for he says explicitly, in stating his relation with Koop, “ I had an agreement with him, and under that agreement I was employed to assist in the-prosecution of the so-called Alabama claims.” For -the assistance rendered under that employment he was to have one-half of the profits realized by Koop, but no actual partnership, or intent to constitute that relation is to be inferred from his evidence.

The further argument rests largely upon an idea that the-writing signed by Koop and the firm of Carlisle & Co. was-merely a power of attorney not coupled with an interest-which ended and was revoked by the dissolution of that-firm and the death of the surviving partner; and since-nothing up to that time had been recovered upon the claim for war premiums paid, no right to compensation accrued' to Koop, and he merely lost his services through a risk which he had taken upon himself. But the paper signed by the parties was something more than a power of attorney. That was granted as incidental to a complete contract for services to be rendered on one side and compensation to be paid on the other. Carlisle & Co. had suffered through the depredations of rebel cruisers, launched or armed under the eye of a treacherous neutrality.

Beyond the absolute destruction which followed accrued a ruinous increase in the rates of marine insurance. Restoration of their losses the firm were desirous to obtain, from or through the federal authority. They employed Koop effect that object. Their contract was with him, his assigns-

p. 847

and representatives; and it provided that for service in that ■direction rendered and to be rendered Koop should receive twenty-five per cent of the sum ultimately recovered. He entered upon the service. The claim was scheduled among those presented to the Geneva tribunal, but was of a class rejected by its decision. But Koop and those interested with him pressed the equity of these claims upon the government until the act was passed in 1882 which authorized their allowance. The surviving partner of Carlisle & Co. had died in 1880, but his death did not dissolve the contract. On one side, by its terms, it ran to those who might in the end represent Koop, and on the other, beyond the death •of the Carlisles, if that occurred before the recovery was reached, for its terminus was a recovery or a final abandonment of the claim. By his services, Koop had acquired an interest in the enterprise contemplated by the contract, and a right to continue its prosecution to reach and procure the ■compensation agreed.

Nor did it end with the rejection of the claim by the Geneva tribunal. A similar contention was held unfounded in Lawson v. Bachman ( 81 N. Y., 616 ; 109 U. S., 659 ). Primarily, the loss was expected to be recovered through the intervention of the government whose rights had been •violated, from the nation guilty of the violation, but the rejection of the claim by the Geneva tribunal did not extinguish if or make its further prosecution against our own government the presentation of a new claim other and different from the one covered by Koop’s contract. It remained the same loss and the same equitable right to the damages sustained.

The reference to the provision of the act of congress, which prohibited any assignment or transfer of the claims presented to secure services rendered, has no application to the present case, for no such assignment was made or sought to be made. The ownership of the claim remained to the end in Carlisle & Co. and their representatives. The latter could, as they did, refuse to make Koop their attorney, and so prevent him from fully performing his contract. But he tendered that full performance, and a recovery having been had, he is entitled to the stipulated reward, less the further expense incurred in making the final collection. That amount the judgment gives him, and we think there was no error in it.

The judgment should be affirmed, with costs.

All concur.