Krumb v. Campbell

Garoutte, J. Appellant insists that this action is prematurely brought, and the conclusion reached by the court as to that contention is determinative of the litigation. The facts of the case may be briefly stated: On the eighth day of January, 1888, the appellant entered into an agreement with certain heirs of Charles Lux, deceased, whereby he engaged to give his services as an attorney to them throughout the administration of the estate of said deceased, and bear his own expenses in so doing, and, as compensation therefor, said heirs conveyed to him three per cent of their interest in said estate. On the fourteenth day of January, 1888, the appellant and the respondent entered into an agreement whereby said respondent agreed to aid the appellant in carrying out his agreement with said heirs, and said appellant granted to him two-fifths of the amount realized by him under his agreement with the heirs, after defraying the actual disbursements of appellant in fulfilling his obligations under said agreement. The administration of the estate of Charles Lux, deceased, is still pending and unclosed, but, as the appellant has [373]received certain sums of money aggregating about eighteen thousand dollars, under his agreement with said heirs by virtue of partial distributions of the estate, respondent claims two-fifths thereof after deducting expenses incurred by appellant up to that time. And this action is brought to recover the said two-fifths, amounting to about seven thousand dollars.

For the purpose of determining whether or not respondent Krumb’s cause of action had accrued at the time he filed his complaint, it is necessary to consider the contracts entered into between these various parties, for it is upon the interpretation and construction of these contracts that plaintiff’s right to a present cause of action is weighed and measured. If plaintiff’s contract is an entirety, and he has bound himself thereby to give his services to defendant during the entire administration of the estate, it would seem that no recovery could be had upon the contract until he had rendered all the services stipulated to be performed.

Defendant agreed with the Lux heirs, in consideration of three one-hundredths of their interest in the estate, that he would “perform any and all legal services necessary and proper to be performed in and about the said estate of Charles Lux, deceased, as the attorney of said parties of the first part, in representing them and their several interests therein, to and including the final settlement of said estate, and the final distribution thereof; and it is further agreed that said party of the second part shall faithfully perform his duty and all legal services for the benefit of said parties of the first part .... and that all his personal expenses and outlay in and about said services shall be borne by him individually, and at his own costs without charge to the said parties of the first part.” Under these provisions of the contract it cannot be questioned but that the defendant bound himself to render his services to the Lux heirs as long as the estate remained in course of administration. The contract entered into between plaintiff and