Whiting v. Davidge

Mr. Justice Morris

delivered the opinion of the Court:

In the argument before us the main controversy is as to the true construction and meaning of the written contract which has been set forth in the foregoing statement This contract is comprised of three clauses in three separate sentences, of which the first provides for the payment of $1,000 for professional services to be rendered, and the second provides specifically what professional services are to be rendered. These two clauses in themselves constitute a perfect contract, except per *163 haps in the one particular, that no time is specified in them for the payment of the money; but this omission, if omission it were, would be supplied by the law, which would make the money payable upon the completion of the services. Apart from this question as to the time for payment, the contract set forth in these two clauses is complete. It is at the same time one and indivisible, as are the professional services to be performed,, although these latter include various items and involve alternative contingencies that Whiting might or might not become ai party to the pending suit. There is no ground whatever in these two clauses for any pretense that a part of the sum total was to be paid for certain specified services, and another part for certain other services. In other words^ the consideration on both sides is one and indivisible.

But in the third clause or third sentence of the contract there is a provision as to the time for payment of the specified amount; and this is, that one half of the sum should be paid immediately upon the execution of the contract, evidently as a retainer, in accordance with the custom of lawyers; and the other half at the termination of the Leiter suit, in the event that Whiting should become a party thereto. The writing, however, is silent as to the time for the payment of this second half in the event that Whiting should not become a party to the Leiter suit; and he claims that it is the meaning of the contract, and that in fact it was the agreement of the parties to it., that this second half was not payable at all in that contingency. But this contention we must regard as untenable. Such a construction of the contract would change words that denote merely a contingency into words that denote a condition; and the two things, contingency and condition, are very different. There is nothing' whatever conditional in the language of the contract. There is no intimation anywhere in the contract that the services stipulated to be performed by Davidge should not be paid for unless Whiting became a party to the Leiter suit. On the contrary, the plain import of the contract is that the services to be rendered, whatever they should be, and which ever of the contemplated contingencies should occur, should be compensated *164 for by the payment of $1,000. The question of malting Whiting a party to the suit or keeping him out of it was one of the •questions to be determined, and one of the items of professional service to be rendered. That question runs through the whole «contract; it was one of the things to be kept in view all the time. Counsel and advice in regard to it, management of the ease in the event of intervention, and counsel and advice in regard to his interest in the event of nonintervention, but always keeping the suit in view, were the three general items of professional service to be rendered; and it is very plain that the parties entered into the contract with all these contingencies and with all these elements of professional service in mind, and with the view that the sum of $1,000 should be paid for the professional services of Davidge, whichever contingency should ¡occur.

There can scarcely be a doubt that the understanding of the parties was that, if it became necessary or expedient for Whiting to intervene as a party to the Leiter suit, the determination «of that suit would finally determine also the rights of Whiting .and at the same time terminate the professional services to be rendered by Davidge. The provision, therefore, in the last •clause of the contract, that the second half of the stipulated fee ¡should be paid at the termination of that suit in the event of Whiting’s becoming a party thereto, was the equivalent in their minds of the proposition that in such specified contingency it ¡should' not be payable until such termination of the suit. The provision of the contract is, not that this second half of the stipulated fee should not be demanded at all in a certain contingency, but that in the event of the happening of the contingency it should not be demandable before the termination of the suit If the purpose of the third clause was to modify the provisions •of the previous clauses, it should have specifically so stated. In our opinion it is not capable of that construction.

This was the view taken of the contract by the court below; and we think that it is the correct view.

Assuming this to be the proper construction of the paper writing before us, as we think it is, we find an intimation in *165 the appellant’s affidavit of defense that Davidge perpetrated a fraud upon the appellant by representing the paper to' be what in fact it was not. But the paper was open to the appellant for examination; and if he signed it, as he says he did, without' due examination, he has only himself to blame for his neglect to exercise due care in the premises. He states that he had previously refused to sign a paper obligating him to pay the sum of $1,000 in any event, because this was not his agreement with Davidge, and that Davidge subsequently presented the present paper for his signature with the representation that it correctly embodied their agreement, which, as he claims, was that he should pay the second sum of $500 in the event that he should be made a party to the Leiter suit. But, although by his own version of the transaction, put upon his guard by this first alleged failure to reduce the agreement correctly to writing, he admits that he signed this paper without a careful reading of it, and relying only upon what he supposed to be the meaning of the last clause, which he says that he did notice. But this excuse, of course, cannot avail him in the present suit. If there was error, or mistake, or misrepresentation, or fraud, in the reduction of the agreement between the parties, or in the execution of the contract, there is a remedy for the correction of the wrong; but it is not in this suit. While in contracts between counsel and client, even when the relation is only inchoate, as-it was in the present case at the time of the execution of the-contract in controversy, the utmost fairness is required, and doubt should be resolved, where reasonable doubt exists, against the contention of the counsel; yet an allegation of wrongdoing on the part of one now deceased, which in all probability could neither be proved nor disproved under the law, must be received with disfavor.

In the affidavit of defense there is also another serious intimation — for it is no more than an intimation — that Davidge did not render the stipulated professional services required by the contract And to this intimation the fact of the voluntary dismissal of the Leiter suit by the parties thereto shortly after the execution of the contract between Whiting and Davidge give» *166 some degree of plausibility. But there is no distinct positive allegation or averment by the appellant that Davidge did not render the stipulated services. In the affidavit for the plaintiff it had been positively averred that he had rendered the services required by the contract; and it was incumbent on the defendant, if he would take issue with the plaintiff on that ground, to deny the rendition of such services. This he does not do. If there had been such failure of performance of service on the part of Davidge, it would have been easy for the defendant to have said so in plain language. He says it only by indirection. He says that, with little or no assistance from Davidge, with no attendance by him at any hearing of the cause, with no report from him of the progress of the cause, and with no opinion from him touching the expediency of intervention by Whiting in the suit, he personally settled the controversy himself in New York, apparently by the sale of his stock. Plainly this is no sufficient allegation that Davidge did not render the stipulated services. It is intimation and indirection, and not allegation upon which an issue could be framed for a jury.

We are of opinion that the judgment appealed from was justified by the rule of the court below and by law, and that it should be affirmed. It is accordingly hereby affirmed with costs. And it is so ordered. Affirmed.