Gunn v. Clendenin , 68 Ala. 294 ( 1880 )

STONE, J.

The present controversy arose out of an engagement by the appellee, as attorney, to collect a promissory note, and the case was made to turn in the court below on the construction of a writing appended to the receipt given by the attorney. The receipt, after copying the note, is in the following language : “ Received the original note, of which the above is a copy, for collection or return, of N. M. Gunn, Abbeville, Ala. August 22d, 1866.—(signed) J. A. Clendenin.” Below this, on the same paper, and without signature, are the following words in the handwriting of the attorney : “ I collect for 5 per cent, when not litigated — 10 per cent, when litigated, on the amount recovered.” The case was litigated, and a judgment recovered for about four thousand dollars. The sum collected was about four hundred and sixty dollars. There is testimony tending to show that the attorney, at the request of the plaintiff, performed other service in his interest not growing directly out of the original retainer; but, on this point, there is conflict in the testimony. The Circuit Court ruled, that the proper interpretation of the writing appended to the receipt, was, that it was an agreed rate of compensation, and that the meaning of the words, ten per cent, on the ^amount recovered, was ten per cent, on the amount of the judgment recovered, not on the sum collected. And, holding that the writing defined the measure of compensation, the court rejected all parol or oral proof offered, of what was claimed to- have been the actual agreement of the parties, and of what was the value of the services rendered, according to the usual rate of charges for such services. This presents the main question of the contention.

There can be no question, that when a writing is complete in itself, it is the duty of the court to construe it, without the aid of extrinsic proof. But when it contains a term, which it is impossible for the court to construe without the aid of evidence aliunde, it is proper to resort to that evidence for that purpose.—Drake v. Goree, 22 Ala. 409; Cowles v. Garrett, 30 Ala. 341. So, when the law does not require the contract to b.e in writing, and the writing is insufficient or incomplete, parol evidence is admissible in aid of it.—Mobile M. D. Co. v. McMillan, 31 Ala. 711. See also Lockhard v. Avery, 8 Ala. 502; Lazarus v. Shearer, 2 Ala. 718; Echols v. Exum, 5 Ala. 419; Sanders v. Stokes, 30 Ala. 432; McGehee v. Rump, 37 Ala. 651.

The memorandum appended to the receipt is exceedingly ambiguous. The word, recovered, is probably as apt to- express the idea of money realized, as judgment obtained. Amount recovered is the language of the memorandum. Recovery is the restoration of a former right, by the solemn . judgment of a court of justice. Bouvier’s Law Dic. 7. To obtain a judgment — to succeed in a lawsuit, — is Webster’s definition of the word, recover.’ Wé think and hold, that the memorandum was open to explanation by parol proof.

Reversed and remanded.