Lawson v. Bachman — 44 N.Y. Super. Ct. 396

Majority

p. 396

JAMES LAWSON, et al., Plaintiffs and Respondents, v. HERMAN S. BACHMAN, et al., Defendants and Appellants.

Headnote

Agreement, construction on.—Limitation on time.—Reasonable time, &c.

The agreement of plaintiffs to use their best efforts, and at their own expense, to collect the claim 11 in the shortest practicable Ume, ” did not specifically provide for the duration of time through which pMntiffs were bound to make efforts, and it was also doubtful whether there was any implied obligation upon the 1 defendants not to empower another agent in the same business. Assuming, however, that the contract created such an obligation, there was no time specified in the contract in which plaintiffs had the right, and should be allowed to act as sole agents for the defendants.

Therefore, a reasonable time, under the contract, for each party must be allowed; that is, a period to be fixed according to the circumstances, for the plaintiffs to collect the claim and the defendants to forbear the employment of other agents, and after the expiration of that period the uefendants had the right to employ other agents and proceed in the collection of the claim.

Held, that under the facts in this case that reasonable time had expired, and defendant’s action in the employment of other agents and in the collection of the claim, was justifiable under the contract.

-This limitation as to time was a part of this contract, as matter of law. The power contained in the .contract was not revocable, ■because of the lapse of time, but it simply .expired with the expiration of a reasonable time .or period, which the plaintiffs had under the contract to collect the claim.

Before Sedgwick and Freedman, JJ.

Decided January 6, 1879.

Appeal from judgment entered upon a verdict for' plaintiff by direction of the court.

p. 397

The action was for compensation for services by plaintiffs, under the following written agreement:

“ This Agreement, made this 25th day of April, A. D. 1871, between Messrs. Bachman Brothers, of and Lawson & Walker, of the city of New York, witnesses: That whereas, the said Bach-man Brothers have employed said Lawson & Walker, and authorized them by power of attorney, of even date herewith, to collect our claim arising out of the capture of the ship Commonwealth and her cargo, by the armed rebel cruiser the Florida, the said Lawson & Walker agree to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time, and to indemnify and save harmless the said Bachman Brothers from and against any and all loss or damage from any of the acts of the said Lawson & Walker in the premises.

“ And the said Bachman Brothers, in consideration of the premises, agree to allow and pay to said Lawson & Walker a compensation equal to twenty-five (25 f) per cent, of whatever sum shall be collected on the said claim.”

The defendants also made their power of attorney to the plaintiffs, to collect the claim, which was described as it had been in the agreement.

Between the date of the agreement and some day in 1872, when the plaintiffs’ firm dissolved and went into liquidation, the defendants handed to the plaintiff the bill of lading and the invoice of the goods destroyed. The plaintiffs filed a notice and abstract of the claim, in the department of State, at Washington, and prepared a memorial stating the circumstances of the claim, which on December 11, 1872, they sent to defendants, but never received it back. They also went to Washington, to ascertain the condition of the case and the prospect of a Settlement. The plaintiffs’ firm

p. 398

went into liquidation in the year 1872. The testimony did not show what was the legal character of the claim or against what person or government it was made.

¡Nothing further was done in the matter by plaintiffs, nor communication had between them and defendants until October 19,1874.

In June, 1874, after the award of the arbitration of Geneva, congress passed the act entitled “An act for the creation of a court for the adjudication and disposition of certain moneys received into the treasury, under an award made by the tribunal of arbitration constituted by virtue of the first article of the treaty concluded at Washington, &c.” The act created a court, to pass upon claims for losses by the depredations of the Florida and other steamers, and to direct payment of valid claims out of the award.

On October 19, 1874, the plaintiffs, without a request of defendants, prepared a petition for the court, and inclosed it in a letter, which contained “Please return to us, with the petition when signed, the memorial, also signed, which we forwarded you for signature on December 11, 1872, and duplicate copies procured from the court, by which the originals were granted, of your certificate of naturalization.” This letter was signed Lawson & Walker, in liquidation.

After this date, but in October, 1874, one of the defendants called upon one of the plaintiffs, and, telling Mm in substance that the defendants had employed another attorney, requested him to surrender the invoice and bill of lading, and to release them from the agreement. The person representing the plaintiffs' surrendered the invoice and bill, but refused to release the defendants. Either before this interview the defendants had employed another person to represent them before the court established by the act, or shortly after it they employed him. In due course, the defendants recéived the ámount claimed by them.

p. 399

The defendants, through their new attorney, prosecuted their case before the court, and collected their damages in the sum of $3,034.

The plaintiff gave testimony that if they had proceeded to collect, they would have incurred expenses to about the amount of $125, and the court directed a verdict for them for one-quarter of the amount collected, less this expense.

The defendant took exception, having asked for a dismissal of the complaint.

Chas. F. MacLean, for appellants.

Frederick B. Jennings, for respondents.

The-agreement of the plaintiffs, “to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time,” did not specifically provide for the duration of time through which they were bound to make the efforts. It is very doubtful, at least, whether there was any implied obligation on the part of the defendants, not to empower another agent in the same business. Assuming that there was, there was no time specified in which they were to allow the plaintiffs to act as sole agents. Therefore, the one could only claim a reasonable time, i. e., a period to be fixed according to the circumstances, in which to collect the claim, and the other had the right, after this reasonable time, to proceed in his own way by other agents to collect the claim. This limitation as to time was a part of the contract as matter of law, and the power was not revocable because of the lapse of time but then expired.

After the defendants omitted to sign and return the memorial sent to them December 11, 1872, the plaintiffs did nothing in act or word for two years. This want of action was not due to the defendants retaining

p. 400

the memorial. There was nothing to be done, and the memorial would have served no other purpose than was accomplished by filing the abstract of the claim in the State department. I am of opinion, that after so much time, the agreement was at an end. It is also manifest, from the circumstances, that not only had the time which the law provided passed, but that the plaintiffs had ceased their efforts, and could not have," through the two years, done any service which would have had any effect in prosecuting the claim or securing its success. So far as the testimony shows, or we may judge from the character of the case, there was , nothing to be done. The defendants, therefore, had the right, which they used, of employing another attorney, and the plaintiffs’ refusal to recognize this right.did not affect its validity.

If this conclusion were not correct,- the combination of considerations in the case, viz.: the lapse of time, the agents going into liquidation, the' change in the intrinsic character of the claim, from a claim against some government, resting upon general principles of international obligation, to ■ a claim against a fund, which was not brought, into existence by any effort of the plaintiffs, would convince me that the agreement had expired by its own limitations before the time, in 1874, when the plaintiffs, without request of defendants, attempted to begin a new prosecution of the claim for damages.

The judgment should be reversed, and a new trial ■ ordered, with costs of appeal to appellant to abide the event of the action.

Fkeedman, J., concurred.