Serat v. Smith

1. Attorney and Client—Compensation—Question of Law. Plaintiff agreed with defendants, his attorneys in an action against a railroad company, in respect of their compensation, that “if the suit is tried and plff. is beaten, they are to have nothing, and. if plff. succeeds on trial or by settlement they are to have one-third the amount obtained by plff. and all the costs recovered or received by deft. This is the agreement in this action. ” Defendants recovered judgment against the railroad company, but found it necessary to institute a second action to sequestrate the company’s property in order to enforce collection of the judgment. Held, that the question whether or not defendants were entitled to extra compensation, under their contract, for services in the sequestration suit,was one for the court, and should not have been submitted to the jury. 2. Evidence—Receipt—Contradiction by Parol. . Plaintiff having indorsed and collected a draft remitted to him by defendants, which stated on its face that it was in full for his share of the recovery, and was accompanied by a statement showing the amount of the draft to be the balance due plaintiff, the question whether the draft and the indorsement thereon were equivalent to a receipt in full, and whether plaintiff was concluded thereby, was properly submitted to the jury.

Appeal from Chemung county court. Action by Mortimer E. Serat against Gabriel L. Smith and Andrew J. Robertson. The plaintiff’s complaint alleges that on the 12th day of July, 1883, he made an agreement with the defendants, who were practicing lawyers in the city of Elmira, “ whereby it was contemplated and agreed that these defendants should receive and retain for themselves as and for full payment and compensation by plaintiff for their costs and disbursements and all claims for services performed and to be performed and costs earned and disbursements incurred, then past and prospective, in relation to or arising out of a claim of this plaintiff against the Utica, Ithaca & Elmira Railroad Company, one-third of the amount collected as damages in behalf of the plaintiff against the said railroad company, and should pay to plaintiff the remaining two-thirds of such amount as soon as the same was received by defendants, together with such interest thereon as might be received by defendants when said damages might be paid to them by said railroad company. ” The complaint also alleged that on the 10th day of May, 1886, “after these defendants had performed all the services contemplated by said agreement, and relating to the plaintiff’s said claim against said railroad company, the defendants received under said agreement from said railroad company the sum of $1,516.50, the amount of the damages obtained by plaintiff against said company, and also the sum of $237.78, the interest on said $1,516.50 from September 29, 1883, the date when said sum was awarded as damages to plaintiff against said company, to-May 10, 1886, the date when said damages and interest was paid, amounting in all to the sum of $1,754.28.” Plaintiff alleged that he had demanded payment of the sum of $1,169.52, “but defendants failed and refused to pay the same, or any part thereof, to plaintiff until March 21, 1887, when defendants paid to plaintiff, to apply thereon, the sum of $1,054, “the amount then due and payable from defendants to plaintiff being $1,230.09; * * * and there remained due to plaintiff and unpaid, after deducting said sum of $1,054, paid to apply, the sum of $176.09.” The answer of the defendants was a denial of the allegations of the complaint, and an averment of “settlement and satisfaction and payment, and a counter-claim for services to the value of $250, and demand judgment for $250.” On page 490 of the defendants’ register was the following agreement: “Supreme Court. Chemung County. “Mortimer E. Herat ag’st The Utica, Ithaca & Elmira Railroad Company- “The agreement between plff. and his attys. as to pay for their services is as follows: If the suit is tried, and plff. is beaten, they are to have nothing, and if plff. succeeds on trial or by settlement they are to have one-third the amount obtained by plff. and all the costs recovered or received by deft. This is tlie agreement made in this action. “July 12th, 1883. M. E. Serat. “Smith & Robertson, Attys.” At that time the plaintiff claimed that the railroad company had forcibly ousted him from a trestle-work, which he claimed to own, and the action was brought to recover its value, which action resulted in a judgment on the 29th of September, 1883, for $1,516.50 damages. The company appealed from this-judgment to the general term. Pending that action, and on or about the 3d of October, 1883, the defendants prepared papers in an action of sequestration, and at Delhi obtained an order to show cause returnable at the Madison special term, requiring the defendant to show cause why a receiver should not be appointed, and upon the court’s attention being called to the fact that a bond had been given on appeal no order was made. The appeal was heard in the general term, and the judgment affirmed. The railroad company appealed to the court of appeals, where the judgment was affirmed, (6 N. E. Rep. 795,) and the remittitur was entered in the Chemung county clerk’s office on the 24th day of April, 1886. On the 10th day of May, 1886, the defendants executed and delivered to the railroad company a receipt for the amount of money then received, to-wit, $2,108.19. In the statement, to which the receipt is attached, it appears that the amount of the first judgment (September 9,1883) was $1,598.08, and interest thereon to May 9,1886, at 6 per cent., was $250.63. Other items in the statement appear to be for costs in the general term and in the court of appeals. On February 26, 1887, the plaintiff, by telegram to the defendants, asked, “Has suit been decided?” On February 28, 1887, a telegram was sent to plaintiff at Lexington, Mo., to the effect that one of the members of the firm was absent from home, and that he would write on his return. On March 11, 1887, from Cherokee, Kan., the plaintiff sent a letter to one of the defendants, making inquiry in respect to the suit, iu which he says: “If the suit is undecided, please so notify.” On March 19, 1887, a letter was addressed to the plaintiff by one of the defendants, which contained the following language: “I have just tills week returned from Albany and the court of appeals, and am now happy to announce to you that I have succeeded in collecting your money, and will send it to you just as soon as 1 can get into the bank to get a draft. It is now Saturday afternoon, and I cannot do so until Monday morning. I have expected for months to be able to send you your money every mail, and therefore have neglected writing until today, every day expecting to be able to send you a draft to-morrow. But it has been prevented until now; and now that I have got something to write you, I do so. This explains why I have not written you sooner; at least, it is the only explanation I have to give.” On the 21st of March, 1887, one of the defendants sent to plaintiff by mail a letter addressed to him at Cherokee, Kan., with a draft for $1,054, which draft was to the order of one of the attorneys. The letter stated the draft to be “in full of balance collection against the Utica, Ithaca & Elmira R. R. Co.” The letter contained the following; “Amt. of judgment, ------ $1,516 50 Deduct one-third, • • - - - 505 50 Two-thirds, - - - - - - $1,011 00 Charge for sequestration action, - - - - 100 00 Balance, - - - - - - - $ 911 00 Interest, ------- 143 00 Draft for total, ------ $1,054 00 “I have had more trouble getting this than any money, I think, I ever got. You remember that I had to bring a second action for you outside of the one in which I made the collection, for the purpose of sequestrating the -road, which compelled them to give security, and that this action came on at Morris ville, before Judge Murray, and for this I charge you $100. This was entirely outside of this action, and was really the proceeding that caused our success. 1 had to pay out a very large part of this charge for expenses in getting papers served, going to Morris ville,' Madison county, etc., in the case. I have expected all this year, from week to week, to be able to send you the money, and in such expectation neglected writing you. I was before the court of appeals in Albany last week.” The plaintiff testified that the letters of the 19th and 21st of March were the only letters that he received “after the decision of the court of appeals up to the time of receiving them.” The plaintiff testified that after he received the letter of March 21st, and on the 21st of April, 1887, at Parsons, Kan., he wrote to the defendants a letter containing a statement of the amount of the original judgment, and the interest thereon, and claiming therein that there was due him $1,230.20, less the remittance of $1,054, leaving the balance due the plaintiff of $176.20, and closing his communication with the following words: “I have drawn on you at sight for the above balance, $176.20. Please protect and oblige.” The draft was produced in evidence, having been returned to the plaintiff. It is conceded that the payment of this draft was “refused.” It appears by the evidence that the draft of March 21, 1887, for $1,054, was an ordinary bank draft issued by the Chemung Canal Bank, Elmira, payable to the order of G. L. Smith, and bore upon it an indorsement as follows: “Pay to the order of M. E. Serat in full for balance due on collection of judgment’against the Utica, Ithaca & Elmira Railroad Company, in his favor. G. L. Smith. ” And under the indorsement and signature, as already stated, was the signature of the plaintiff, to-wit, “M. E. Serat. ” In the letter of April 5th, which the plaintiff sent to the defendants, he stated: “You charge me $100 more than you agreed to conduct the suit for. Second. You do not remit all the interest I am entitled to. With the information now at hand, I cannot say exactly what the interest should be; but $143 does not cover it. Please remit the $100 above and balance of interest at once, and oblige.” On the 9th of April the defendants wrote the plaintiff a letter addressed to him at Parsons, Kan., in which they say, viz.: “The statement we sent you is entirely correct. We made an agreement as to the one case, and after that agreement was made another action was commenced for you, in which we paid out about $40 in cash, and which action was the one that compelled them to give security on their appeal, and so enable us to collect in the end. We charged you for the same $100, which is a very reasonable charge. .The interest, as we figure it, is correct.” The complaint in the second action was verified by the plaintiff on the 3d day of October, 1883, and it stated that the execution on the judgment had been returned by the sheriff of Chemung county “wholly unsatisfied, and that said judgment is wholly unpaid, and the said plaintiff is unable in any way to obtain satisfaction thereof.” Plaintiff verified an affidavit which was used to obtain the order “to show cause on the 9th day of October, 1883.” The order to show cause was signed October 10, 1883, and was returnable at a special term in Morrisville on the 16th day of October, 1883. One of the defendants testifies that the plaintiff directed the commencement of the sequestration action, and also that “there was nothing said between myself and him with reference to the expense of it, or as to whether or no it would be included in the agreement that I had with him in the other action. I did not tell him at that time what the probable expense of the other action would be, or what the charge would be. There never was any statement made by me in the conversation with him, in which I said that notwithstanding the commencement of this action of sequestration, so called, that the only expense to him would be the printing of points for the court of appeals. ” The plaintiff testifies that on one occasion he obtained a copy of the agreement from one of the defendants, “and I asked him if that would cover all the costs that I would be liable for in the action. I didn’t know but there might be something outside that I did not understand. I asked him if that would cover all, and he told me that that would cover all the expenses that I would be liable for, with the possible exception of printing something that had togotothe courtof appeals. I don’t know what; some argument or something that had to go to the court of appeals. Question. Points? Answer. Yes, sir; but beyond that I was responsible for nothing but the one-third. This was after this sequestration action had been commenced.” One of the defendants testifies that on the 4th of May, 1886, he addressed a letter to the plaintiff at Lexington, Mo., in which he stated: “We have beaten them in court appeals, and hope to get our money soon, but they may keep us out of it a year or two by compelling us to sue on the bonds; but I hope not. Let me hear from you, so I may know your address in case the money comes.” And one of the defendants testifies that he did not know prior to the 19th of March, 1887, that the plaintiff “had changed his residence from Lexington, Mo. At least, I heard that he had changed it, but I did not know where.” From a judgment of the county court affirming a judgment of the justice’s court for plaintiff, defendants appeal.