Ely v. Spofford & Tileston

22 Barb. 231

• Court: New York Supreme Court
• Decided: September 8, 1866
• Status: Published

Opinion

By the Court, Roosevelt, J.

Shortly after the passage of the new tariff act of 1846, a question arose in relation to the duties on molasses and sugars, whether in estimating the- value a deduction should be made for drainage on the voyage of importation. The officers of the customs, including the secretary of the treasury, took ground in opposition to the merchants. Mr. Ely, the plaintiff in this case, believing as he said that the merchants were overcharged, proposed “ to recover, and cause any excess of duties, so paid to the government of the United States, to be refunded,” upon receiving for his services and expenses “ one half of the same,” or, at the option of the claimants, a reasonable compensation to be afterwards agreed upon by the parties or “ fixed by referees.”

Messrs. Spofford &. Tiles ton, among others, agreeing to Mr. Ely’s proposal, accordingly signed a stipulation to that affect, writing opposite to their signature, however, at the same time, the Words, “ not to interfere with any other arrangement already made,” a very loose form of expression it must be admitted, and calculated, as it has done, to give rise to very embarrassing litigation. It was sufficient, nevertheless, to put the party on inquiry. Indeed he knew, as appears, of the pre-existing employment of Messrs. Douglass and Ogden, who were then also actually engaged in the business, and whose influence and exertions, it is obvious, contributed largely to the result, and who had to be, and actually were, liberally remunerated. Mr. Ely, notwithstanding, claimed his fifty per cent with interest and without deduction ; and the jury, under the charge of the judge, gave him a verdict accordingly for $5153.25.

If this verdict stands Messrs. Spofford & Tileston, although successful in their controversy with the government, instead of realizing as was intended at least one net half of their claims, will in effect have paid the whole recovery in costs and commissions. And yet, by the terms of Mr. Ely’s proposition and agreement, he was to save them harmless “ from all costs and liabilities to costs,” and to charge his commission only “ on whatever sum or sums of money he might recover for them.”

Without a more minute detail of the voluminous case presented to us, we are clearly of opinion that the judge was in error when he charged the jury that in fixing the defendants’ liability, they were “ not to take into account the expenses paid to parties employed under the prior contract of February, 1848.”

[New York General Term, September 8, 1866.

A new trial should therefore be ordered, costs to abide the event.

Roosevelt, Clerks and Whiting, Justices.]