Benjamin v. Frenke

YORK, P. J. The factual situation presented by the record herein is briefly as follows:

Appellant, a scenario writer and motion picture director, engaged the respondent attorneys at law to represent him in connection with certain claims which he had against the Universal Pictures Corporation, herein referred to as Universal, and on January 28, 1937, respondents delivered to appellant a retainer agreement which provided that they were “to receive and retain out of any recovery obtained on my behalf either by way of settlement of said claim, in or out of court, or collection of judgment, 35% of any and all sums so recovered, received or collected. In the event action of an appeal in the litigation aforesaid or in the event of a [737]new trial being granted and the case being tried a second time or a second trial being commenced, then your percentage is to be 40%.” This agreement was never signed, but on February 6, 1937, appellant prepared, signed and his secretary delivered to respondents a retainer agreement which contained, among other things, the following recital:

“You are to receive and retain out of any recovery obtained on my behalf either by way of settlement of said claim, in or out of court, or collection of judgment, fifteen (15%) per cent of any and all sums so recovered, received or collected out of court; thirty (30%) per cent of any and all sums so recovered, received or collected through court action and/or trial. In the event action of an appeal in the litigation aforesaid or in the event of a new trial being granted and the case being tried a second time or a second trial being commenced, then your percentage is to be thirty-five (35%) per cent. ’ ’

On February 17th, respondents wrote to appellant at London, England, with respect to the terms contained in the retainer of February 6th, to the effect that the 15 per cent provided therein meant they could collect 15 per cent in the event a settlement was effected without filing a complaint, and that thg fee would be 30 per cent if an action were filed. Respondents enclosed with this letter a new retainer agreement which provided that they proceed ‘ ‘ on the basis of one-third to us of any amount or amounts recovered, in aiy event, except in case of a new trial being granted ... or a second trial being commenced, or in the event of an appeal ... it would be 40% ”,

On March 11, 1937, appellant wrote respondents from London: “I acknowledge your letter of February 17th and enclose the documents you wished me to sign. I have only changed 33% to 30% and I know you will agree with this.” No documents were enclosed.