[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The single question raised on the present appeal is, what is the true construction and legal effect of the agreement seth forth in the complaint? Or, reducing it to practical application, did the defendant's intestate, by settling his controversy after an appeal had been taken to the Court of Appeals, become liable to pay to the plaintiff the $1,000 mentioned in the agreement? The judge at the trial, charged that he did. The court in General Term have decided that he did not.
In my opinion the agreement between the parties contemplated, and only contemplated, an appeal by the intestate to
the Supreme Court and an argument of such appeal there, and fixed $1,000 as compensation to the plaintiff in the event of success on that appeal.
It is true, that it recognized the possible necessity, in order to obtain the benefit of that success, of contesting the case in the Court of Appeals, for, although successful in the Supreme Court, it was in the power of the adverse party to compel an argument in the Court of Appeals, before such success would be available, and, in that contest, unless the claim of the intestate should be urged in the court of last resort, his success in the Supreme Court would be defeated. In such event the agreement intended that the plaintiff should conduct the appeal in the Supreme Court, and if successful, his right to have of the defendant $1,000, was absolute, and it would be his duty to maintain a successful decision if necessary in the Court of Appeals, and for that he was to have a further reasonable compensation, and this he would be entitled to have, whatever the decision of the Court of Appeals might be. But I find nothing in the agreement that imports obligation on the part of the intestate to litigate further, if the decision of the Supreme Court should be adverse to him.
The words of the agreement referring to a possible necessary contest in the Court of Appeals, are that in such case the said Hitchings is to have "further" compensation. "Furthercompensation," clearly means additional to some compensation before mentioned, and this further compensation is not made to depend upon success in the Court of Appeals. It therefore assumes that the $1,000 has been earned by success in the Supreme Court, and provides for further compensation in addition thereto, should it be necessary to contest the case in the higher court.
The argument for the appellant makes final or ultimate success in defeating the probate, the test of the title of the plaintiff to the $1,000. This must be the result of the argument, or it makes a very unfair and one-sided instrument. The argument is, the object of the intestate was to defeat the probate; if, therefore, the plaintiff, though unsuccessful in the Supreme Court, succeeded in the Court of Appeals, the
object of the intestate was accomplished, and he must pay not only the reasonable compensation for services in the Court of Appeals, but also the $1,000 for the conduct of the appeal in the Supreme Court.
The same reasoning precisely may be employed on behalf of the respondent. The object of the intestate was to defeat the probate, and if you had succeeded in the Supreme Court, but the other parties appealed, and in the Court of Appeals the probate was affirmed, the object of the intestate would have failed, and you, therefore, would not be entitled to the $1,000.
To this latter claim the appellant would very properly reply (the words of the contract): "If the decision of the surrogate is reversed by the Supreme Court, I am to pay him for his compensation one thousand dollars."
To the former claim the respondent may properly reply: "As the decision of the surrogate was not reversed by the Supreme Court, I am not to pay him for his compensation the one thousand dollars."
In short, under the plain terms of the first two paragraphs in the agreement, the condition upon which the $1,000 was payable, would not be satisfied unless the decision of the surrogate was reversed by the Supreme Court.
It is true, that the words "contest the case in the Court of Appeals," may, by a liberal construction, import "litigate the question either as appellant or respondent," but there are two reasons for confining its meaning here to resistance to an affirmative attack or claim.
It is first used in the agreement in that sense, viz., resistance before the surrogate, of the affirmative endeavor to establish the codicil. It is satisfied, when used in the second paragraph, by the same import, resistance to an affirmative endeavor in the Court of Appeals to reverse the success he has had in the Supreme Court.
But, more strongly still, on the determination in the Supreme Court, adverse to the intestate, no compensation had been earned, provision for "further compensation" was,
therefore, not apt to express a compensation for the intestate's appeal to the Court of Appeals.
For example, suppose the appeal which was actually taken to the Court of Appeals had been argued, and the judgment of the Supreme Court had been affirmed, the intestate would have been unsuccessful throughout.
The agreement either contemplated such an exigency or it did not. If it did not, then there is an end of the idea, that the "contest in the Court of Appeals" was on an appeal by the appellant after the plaintiff had failed to "succeed" before the Supreme Court. And to say that it did contemplate and provide for that exigency, is to say that "further compensation" means a compensation in addition to no compensation, for, clearly, utter failure could not entitle the plaintiff to the $1,000.
To say that the agreement secured to the plaintiff the $1,000, if he should be finally successful in defeating the probate, notwithstanding he failed in the Supreme Court, involves this consequence, viz., that the plaintiff would have a right to carry the case to the Court of Appeals, whether, after the decision in the Supreme Court, the intestate was willing or not. I think it clear, that the parties did not themselves so understand it. On the contrary, the plaintiff sought the intestate and a consultation was had, and it was by direction of the intestate that the appeal was taken.
In this, the parties acted according to what appears to me to be the intent and meaning of the agreement, viz., that, upon failure to succeed in the Supreme Court, the office and effect of the agreement was at an end. The intestate was at liberty to appeal to the Court of Appeals or not, at his pleasure; and, if he saw fit to appeal, he was entirely at liberty to employ the plaintiff to prosecute that appeal, or to employ other counsel for that purpose.
If he chose to employ the plaintiff, as he did, the service which the plaintiff rendered was not rendered under the previous agreement, but upon a new retainer. And it is not by force of such prior agreement that he is entitled to compensation, but by reason of his employment to prosecute
an appeal after an adverse decision in the Supreme Court, an employment not stipulated for in the agreement at all.
If this be a correct view of the meaning and effect of the agreement, then its concluding clause, which provided, that, if the intestate should settle the case with the other parties without the approval of the plaintiff, the former should be liable to the plaintiff "for his full compensation as herein provided," does not affect the result.
That clause must be construed with reference to the other provision.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The single question raised on the present appeal is, what is the true construction and legal effect of the agreement seth forth in the complaint? Or, reducing it to practical application, did the defendant's intestate, by settling his controversy after an appeal had been taken to the Court of Appeals, become liable to pay to the plaintiff the $1,000 mentioned in the agreement? The judge at the trial, charged that he did. The court in General Term have decided that he did not.
In my opinion the agreement between the parties contemplated, and only contemplated, an appeal by the intestate to
the Supreme Court and an argument of such appeal there, and fixed $1,000 as compensation to the plaintiff in the event of success on that appeal.
It is true, that it recognized the possible necessity, in order to obtain the benefit of that success, of contesting the case in the Court of Appeals, for, although successful in the Supreme Court, it was in the power of the adverse party to compel an argument in the Court of Appeals, before such success would be available, and, in that contest, unless the claim of the intestate should be urged in the court of last resort, his success in the Supreme Court would be defeated. In such event the agreement intended that the plaintiff should conduct the appeal in the Supreme Court, and if successful, his right to have of the defendant $1,000, was absolute, and it would be his duty to maintain a successful decision if necessary in the Court of Appeals, and for that he was to have a further reasonable compensation, and this he would be entitled to have, whatever the decision of the Court of Appeals might be. But I find nothing in the agreement that imports obligation on the part of the intestate to litigate further, if the decision of the Supreme Court should be adverse to him.
The words of the agreement referring to a possible necessary contest in the Court of Appeals, are that in such case the said Hitchings is to have "further" compensation. "Furthercompensation," clearly means additional to some compensation before mentioned, and this further compensation is not made to depend upon success in the Court of Appeals. It therefore assumes that the $1,000 has been earned by success in the Supreme Court, and provides for further compensation in addition thereto, should it be necessary to contest the case in the higher court.
The argument for the appellant makes final or ultimate success in defeating the probate, the test of the title of the plaintiff to the $1,000. This must be the result of the argument, or it makes a very unfair and one-sided instrument. The argument is, the object of the intestate was to defeat the probate; if, therefore, the plaintiff, though unsuccessful in the Supreme Court, succeeded in the Court of Appeals, the
object of the intestate was accomplished, and he must pay not only the reasonable compensation for services in the Court of Appeals, but also the $1,000 for the conduct of the appeal in the Supreme Court.
The same reasoning precisely may be employed on behalf of the respondent. The object of the intestate was to defeat the probate, and if you had succeeded in the Supreme Court, but the other parties appealed, and in the Court of Appeals the probate was affirmed, the object of the intestate would have failed, and you, therefore, would not be entitled to the $1,000.
To this latter claim the appellant would very properly reply (the words of the contract): "If the decision of the surrogate is reversed by the Supreme Court, I am to pay him for his compensation one thousand dollars."
To the former claim the respondent may properly reply: "As the decision of the surrogate was not reversed by the Supreme Court, I am not to pay him for his compensation the one thousand dollars."
In short, under the plain terms of the first two paragraphs in the agreement, the condition upon which the $1,000 was payable, would not be satisfied unless the decision of the surrogate was reversed by the Supreme Court.
It is true, that the words "contest the case in the Court of Appeals," may, by a liberal construction, import "litigate the question either as appellant or respondent," but there are two reasons for confining its meaning here to resistance to an affirmative attack or claim.
It is first used in the agreement in that sense, viz., resistance before the surrogate, of the affirmative endeavor to establish the codicil. It is satisfied, when used in the second paragraph, by the same import, resistance to an affirmative endeavor in the Court of Appeals to reverse the success he has had in the Supreme Court.
But, more strongly still, on the determination in the Supreme Court, adverse to the intestate, no compensation had been earned, provision for "further compensation" was,
therefore, not apt to express a compensation for the intestate's appeal to the Court of Appeals.
For example, suppose the appeal which was actually taken to the Court of Appeals had been argued, and the judgment of the Supreme Court had been affirmed, the intestate would have been unsuccessful throughout.
The agreement either contemplated such an exigency or it did not. If it did not, then there is an end of the idea, that the "contest in the Court of Appeals" was on an appeal by the appellant after the plaintiff had failed to "succeed" before the Supreme Court. And to say that it did contemplate and provide for that exigency, is to say that "further compensation" means a compensation in addition to no compensation, for, clearly, utter failure could not entitle the plaintiff to the $1,000.
To say that the agreement secured to the plaintiff the $1,000, if he should be finally successful in defeating the probate, notwithstanding he failed in the Supreme Court, involves this consequence, viz., that the plaintiff would have a right to carry the case to the Court of Appeals, whether, after the decision in the Supreme Court, the intestate was willing or not. I think it clear, that the parties did not themselves so understand it. On the contrary, the plaintiff sought the intestate and a consultation was had, and it was by direction of the intestate that the appeal was taken.
In this, the parties acted according to what appears to me to be the intent and meaning of the agreement, viz., that, upon failure to succeed in the Supreme Court, the office and effect of the agreement was at an end. The intestate was at liberty to appeal to the Court of Appeals or not, at his pleasure; and, if he saw fit to appeal, he was entirely at liberty to employ the plaintiff to prosecute that appeal, or to employ other counsel for that purpose.
If he chose to employ the plaintiff, as he did, the service which the plaintiff rendered was not rendered under the previous agreement, but upon a new retainer. And it is not by force of such prior agreement that he is entitled to compensation, but by reason of his employment to prosecute
an appeal after an adverse decision in the Supreme Court, an employment not stipulated for in the agreement at all.
If this be a correct view of the meaning and effect of the agreement, then its concluding clause, which provided, that, if the intestate should settle the case with the other parties without the approval of the plaintiff, the former should be liable to the plaintiff "for his full compensation as herein provided," does not affect the result.
That clause must be construed with reference to the other provision. The intestate must not by a settlement deprive the plaintiff of his right to the $1,000, or his opportunity to earn it. But, when that opportunity was gone, by his failure to succeed, the condition of things in view of which this stipulation was made had ceased.
The claim of the appellant here is, that this language is to be construed literally; and, as the intestate has settled with the other parties, the $1,000 is payable. Such a claim involves the absurdity that the intestate could never settle with the other parties, without paying the plaintiff the $1,000, however unsuccessful the litigation might be. This stipulation meant that the plaintiff should have his $1,000, upon the conditions expressed, or as provided in the agreement, and no settlement should be made by the intestate to prevent it, except upon a liability to pay the plaintiff that sum.
I repeat, the agreement stipulated for a hearing in the Supreme Court, and for a possible necessity of maintaining success there in the Court of Appeals. The condition upon which the $1,000 was to be paid, as provided in the agreement, has never happened.
For these reasons, I think the judgment and order of the General Term of the Supreme Court should be affirmed, and judgment absolute for the respondent be rendered, pursuant to the plaintiff's stipulation. The plaintiff, by his stipulation, has waived his right now to elect to take judgment for the sum which the Supreme Court tendered to him at his option, to avoid a new trial. The order was right, and it was not per se appealable. In order to secure an appeal, the
plaintiff saw fit to stipulate, that, if this court should affirm the order, judgment absolute for the defendant should be entered. We cannot, now, in the face of that stipulation, say that judgment absolute for the plaintiff shall be rendered. The plaintiff was not at liberty thus to speculate on the chances of an appeal, — proposing to himself that he should gain something if the order is reversed, but lose nothing in any event. He might have gone to a new trial, and from a ruling which secured to him only $200 and costs (which the Supreme Court have tendered him), have come up to this court on exception, and been heard, in which case he would have retained judgment for the reduced amount which he has now, by voluntary stipulation, waived. (18 N.Y. 493.) The plaintiff may have acted unwisely by stipulating, but we cannot relieve him. He has taken and used the privilege which he could only obtain by stipulating to submit to final judgment for the defendant, and he must abide by the stipulation.