Jackson v. Campbell

PRESTON, J.

This appeal involves the construction of a written contract of employment to determine thereunder the amount to be retained by defendant as his fee for legal services rendered plaintiff.

Defendant, plaintiff’s attorney, secured as damages for the death of her husband, a judgment in her favor in the total sum, including interest and costs, of $7,384.65, which judgment was affirmed on appeal. A controversy having arisen over the percentage- to be retained by defendant as his fee, plaintiff brought this action to recover $4,908.36, alleged to be due her after retention by defendant of a thirty-five per cent fee with interest, amounting to $2,476.29.

The written contract between the parties contained paragraphs numbered I to IV, relating to the fee to be received by defendant. Paragraph I provided that if defendant should collect plaintiff’s claim for damages without suit, he should receive as compensation for his services twenty per cent of the total amount collected. Paragraph II provided that if he could not so collect said claim, an action for damages should be brought by him as attorney for plaintiff, plaintiff to advance and pay all costs and expenses connected therewith, and defendant to receive “as

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compensation for his services in bringing and prosecuting the said action to judgment in said superior court” thirty-five per cent of the total amount recovered. Paragraph III provided that in the ease of a compromise and settlement of said claim after bringing suit, defendant should receive as compensation for his services thirty-five per cent of the amount received, in settlement. Paragraph IV provided that in case the action was appealed to the Court of Appeals or the Supreme Court, plaintiff would advance and pay all costs in connection therewith and defendant should “receive as compensation for his services therein” thirty-five per cent of the amount recovered in said action.

Plaintiff, as above stated, claimed that said contract entitled defendant to retain but a thirty-five per cent fee for his services in both trial and appellate courts. In his answer defendant alleged that he was entitled under said contract to a thirty-five per cent fee for his work in the trial court alone and to an additional sum for his services on appeal, making a total in excess of fifty per cent of the amount recovered, but that he waived his right to any more than said fifty per cent and offered to pay into court for the use and benefit of plaintiff the sum of $3,692.84, being one-half of the total judgment collected. Thereafter and prior to trial he did pay said sum to plaintiff and she accepted it. Upon these facts the court found that under said contract defendant was entitled to retain a fee of thirty-five per cent only and it therefore gave judgment for plaintiff in the sum of $1441.69, interest and costs, which sums, together with the $3,692.84 above mentioned, made up the total amount of her claim. Defendant appealed.