Heiberger v. Worthington

D.C. Circuit

Heiberger v. Worthington

23 App. D.C. 565, 1904 U.S. App. LEXIS 5285

CourtCourt of Appeals for the D.C. Circuit

DecidedMay 4, 1904

DocketNo. 1395

StatusPublished

This text of 23 App. D.C. 565 (Heiberger v. Worthington) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Heiberger v. Worthington, 23 App. D.C. 565, 1904 U.S. App. LEXIS 5285 (D.C. Cir. 1904).

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Opinion

Mr. Justice Morris

delivered the opinion of the Court:

There is no room here for the discussion which the appellants seem desirous to raise, as to what would be a just and reasonable compensation to the appellees for the professional services rendered by them. There is an express contract in writing by which the matter must be determined. Nor is there any ground for restricting the appellees to a percentage of 10 per cent of the property recovered. The contract gives them the right to claim 15 per cent; and they have elected to do so. The only question reasonably open for consideration is that of the valuation of the property upon which the percentage claimed by the appellees is to be based; and this question is not a difficult or doubtful one.

The appellees, in their affidavit filed with the declaration, swear positively that the market value of the property recovered for Mary W. Heiberger is not less than $90,000; that this valuation was agreed upon between the appellants and the appellees; and that the sum of $13,500 based thereon, was like[569]*569wise agreed upon, between them as the compensation to be paid to the appellees under the contract. These are the substantial allegations of the affidavit, and not one of them is in any manner controverted in the affidavit of defense. In this latter affidavit the only averment that bears upon this point is one wherein it is recited that, in the compromise agreement over the contest regarding the will, the property of John W. Nairn, “to be divided between the parties to said agreement was estimated to be of the value of six hundred thousand dollars ($600,000), of which property 13.8-2-lths per cent, or eighty thousand dollars ($80,-000), was to belong to the defendant, Mary W. Heiberger;” and that the compromise had been effected with the approval and active co-operation of the appellees. But plainly this is no answer to the affidavit of the plaintiffs. The important question is the market value of the share of John W. Nairn’s estate recovered for Mary W. Heiberger. The plain and positive statement of the plaintiffs that this was upwards of $90,000 is not controverted by an averment that for conventional reasons the estate of John W. Nairn was estimated at $600,000, and that the share of Mary W. Heiberger in this was 13% per cent If this share was not of the market value of $90,000 and upwards it would have been easy to say so. If it was not said the inference is clear that it could not have been truthfully said.

We find no reason to disturb the judgment appealed from; and that judgment must be affirmed, with costs. And it is so ordered. Affirmed.

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Mr. Justice Morris

delivered the opinion of the Court:

There is no room here for the discussion which the appellants seem desirous to raise, as to what would be a just and reasonable compensation to the appellees for the professional services rendered by them. There is an express contract in writing by which the matter must be determined. Nor is there any ground for restricting the appellees to a percentage of 10 per cent of the property recovered. The contract gives them the right to claim 15 per cent; and they have elected to do so. The only question reasonably open for consideration is that of the valuation of the property upon which the percentage claimed by the appellees is to be based; and this question is not a difficult or doubtful one.

The appellees, in their affidavit filed with the declaration, swear positively that the market value of the property recovered for Mary W. Heiberger is not less than $90,000; that this valuation was agreed upon between the appellants and the appellees; and that the sum of $13,500 based thereon, was like[569]*569wise agreed upon, between them as the compensation to be paid to the appellees under the contract. These are the substantial allegations of the affidavit, and not one of them is in any manner controverted in the affidavit of defense. In this latter affidavit the only averment that bears upon this point is one wherein it is recited that, in the compromise agreement over the contest regarding the will, the property of John W. Nairn, “to be divided between the parties to said agreement was estimated to be of the value of six hundred thousand dollars ($600,000), of which property 13.8-2-lths per cent, or eighty thousand dollars ($80,-000), was to belong to the defendant, Mary W. Heiberger;” and that the compromise had been effected with the approval and active co-operation of the appellees. But plainly this is no answer to the affidavit of the plaintiffs. The important question is the market value of the share of John W. Nairn’s estate recovered for Mary W. Heiberger. The plain and positive statement of the plaintiffs that this was upwards of $90,000 is not controverted by an averment that for conventional reasons the estate of John W. Nairn was estimated at $600,000, and that the share of Mary W. Heiberger in this was 13% per cent If this share was not of the market value of $90,000 and upwards it would have been easy to say so. If it was not said the inference is clear that it could not have been truthfully said.

We find no reason to disturb the judgment appealed from; and that judgment must be affirmed, with costs. And it is so ordered. Affirmed.

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Bluebook (online)

23 App. D.C. 565, 1904 U.S. App. LEXIS 5285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heiberger-v-worthington-cadc-1904.