Smith Sons Lumber Co. v. Steiner, Crum Weil , 204 Ala. 306 ( 1920 )

On rehearing, after further consideration of the contract set out in the statement of the case, I cannot concur in the construction accorded it by the majority of this court. The appellant employed appellees as attorneys to represent it in the enforcement of legal rights against Richard Tillis. The circumstances involved and the result of the services rendered by appellees under this contract are disclosed by the report of the appeal in Tillis v. Smith Sons Lumber Co., 188 Ala. 122,65 So. 1015. The lumber company prevailed in the litigation with Tillis, and a judgment for $22,000 damages was affirmed on the appeal above mentioned; this court, affirming the action of the trial court in respect of the measure of damages, saying, on page 139 of 188 Ala., on page 1020 of 65 South., that the proper measure of damages was this: "* * * The difference between the actual value of the property at the time of the sale or exchange and is [its] represented value." It is therefore obvious that the equation submitted to the jury and approved on appeal, necessarily comprehended the ascertainment of the value of the property at the time of the dealing and the awarding to the lumber company of a sum of money, in the form of damages, that would be the equivalent of the difference between the actual value and the represented value of the property. Such was in fact done; and the lumber company recovered and has received the sum awarded by the jury, viz., $22,000.

With the avowed purpose of fixing, alternatively the compensation these attorneys should receive, this was the stipulation of the contract:

"* * * Or if we [lumber company] shall recover the difference between that sum [i. e., $53,300] and the actual value of said bonds at the time of said transaction, retaining the bonds, we promise and agree to pay you an amount equal to fifteen per cent. (15%) upon the full sum of * * * $53,300.00, * * * less the said sum of $3,500.00. * * *" (Italics supplied.)

That the result of the litigation contemplated by the parties was favorable to the lumber company is obvious. That there was not only a recovery, but also payment of the judgment in full, is conceded. The question is one of construction of the contract, and in no sense involves the rules of law pertinent to res judicata. The contract itself specified the conditions under which the appellees should be paid 15 per cent. of the sum of $53,300. Those conditions were completely met by the recovery had — a recovery that was predicated of the very circumstances described in the contract. The lumber company sued Tillis for the damages, retaining the property; and recovered the "difference in value" to which reference was made in 188 Ala. 139, 65 So. 1015. The contract defined as the condition to the payment of the percentage on the whole sum, viz., $53,300, the recovery in that litigation, between the parties thereto, and not any other recovery or ascertainment of value in any other suit. If the condition thus defined is not applicable to the litigation between Tillis and the lumber company, there is no contractual provision whereby the lumber company could be required to pay the percentage stipulated. The contract makes no reference to any other litigation nor to any ascertainment in a suit between others to determine the value of the property. To so interpret the contract is to impute to the parties an intent, common to them, to submit to another arbitrament the actual value of the property that was to be and was in fact determined in the litigation to which the contract itself refers. If the question was at all doubtful under the terms of the writing, it seems entirely unreasonable to attribute such a design to these parties when they engaged as this writing provides. If, as is suggested, this result would enforce a "hard bargain," that is no reason for averting the plain effect of this unambiguous contractual obligation.

I would affirm the judgment.

ANDERSON, C. J., concurs in the foregoing opinion of McCLELLAN, J.