Russell v. Young , 15 Ohio F. Dec. 902 ( 1899 )

LURTOY, Circuit Judge,

after making the foregoing statement of facts, delivered the opinion of the court.

Mr. Russell’s suit is based upon the claim that under the contract he is entitled to per cent, upon the value of Mrs. Young’s share of $206,000, and he sues for the balance due him upon this basis, after crediting Mrs. Young with $4,506.49 collected and applied upon his ' fee. The defense was that the contract only provided that Mr. Russell’s compensation should not exceed certain limitations therein mentioned, and did not otherwise settle or determine what Ms compensation should be. The circuit judge interpreted the contract according to the contention of the defendants in error, and held that Mr. Russell could only recover such compensation as his services were reasonably worth, but not to be more than he had charged and received from Silas M. Stone -or Frank W. Stone for like services, nor more than 7^'-per cent, of the aggregate value of money and land recovered as the share of his client, Mrs. Cornelia T. Young. This is the plain meaning of the contract under which Mr. Russell’s services were rendered. It is true that the agreement does not say, in words, that Mr. Russell is to be paid according to the value of his services, or such compensation as is usual and reasonable between client and attorney under all the circumstances of the case. But in the absence of an express agreement the law supplies this term. Here the parties have chosen, however, to provide that such compensation shall “in no event be more than he will charge and receive from either Silas M. Stone or his brother, Frank W. Stone, for like services, nor more than seven and one-half per cent, of the net amount of whatever recovery in cash shall bo made through his efforts for said Cornelia T. Young during the continuance thereof.” But it is asked why the parties did not plainly say that Russell’s compensation should be a quantum meruit, if that was the intention? To say this was unnecessary. The law implied an agreement that one should pay and the other receive reasonable compensation, according to the value of the services rendered. But the law did not imply that a quantum meruit should not be more (ban the compensation charged another* client having the same interest, nor that it should not be more than 74 per cent, upon the value of the share recovered. This limitation upon the eompensa-1 ion to be received was therefore placed upon the contract implied by law. But if the parties intended that 74- per cent, should be received, unless in the event a less sum was received from Mrs. Young’s brothers, why were the words “not more than” and “no more than” inserted in the agreement? To say that: they were inserted through “awkwardness of expression,” as suggested by counsel, or ignorance of tbeir legal effect, is no answer. Mr. Carlisle was (he Yew York counsel for Mrs. Young, as well as her attorney in fact. Mr. Russell was retained to assist him. To assume that these able and experienced lawyers either awkwardly, carelessly, or ignorantly provided that Mr. Russell’s compensation should “in no event be more than he will charge or receive from” the two brothers of Mrs. Young, also represented by him, and having identical interests, “nor- more than seven and one-half per cent.’’ upon the value of the share recovered for Mrs. Young, and yet mean, as is now contended, that Mr. Russell was to receive 74 per cent, upon (he aggregate recovery, unless he received a less sum from his other clients, in which event he was to receive the same from Mrs. Young, is to abuse language, and do violence to the presumption that these gentlemen knew the meaning of the plain terms they employed in this agreement. Yor is this obvious construction affected by the subsequent clauses of the agreement. The clause providing for the contingency of an action of ejectment or a suit in equity (other than in partition), that Mr. Russell should charge or receive “no more than ten per cent, of the net final recovery therein,” did not become effective. Yo such suit as there contemplated was ever brought or defended. But even in ihat clause we And the same idea of limiting a quantum meruit recovery so that the fee for services in such suit should not be ten per cent., but “no more than ten per cent.” The last clause simply provides that, “in computing and collecting his compensation,” land set apart to Mrs, Young shall be estimated as cash; being valued for that purpose by appraisers, if necessary.

Plaintiff offered to prove that he had deducted 74 per cent, of every cash collection made by him, and remitted the remainder to Mr. Carlisle, with a statement, showing that he had retained 74 per cent, as compensation for the collection of the particular remittance, and that no exception had ever been taken by Mr. Carlisle to this construction of Ihe contract. This evidence was offered for the purpose of showing that the parties had construed the contract according to the present contention of plaintiff in error. The evidence was rejected upon the ground that the contract was not doubtful, and needed no such side light in its interpretation. Evidence as to the practical construction by the parties of a doubtful or ambiguous instrument is often of great importance. But such evidence can never control the effect, unless the legal meaning of the instrument is doubtful. Railroad Co. v. Trimble, 10 Wall. 367-377; Land Co. v. Doll, 35 Md. 89; Fogg v. Insurance Co., 10 Cush. 337. To give effect to a written agreement according to an erroneous construction placed upon it by the parties would not be to construe, interpret, and enforce.the written agreement upon which the action is brought, but to enforce a new and different contract. No question of a change or variation in the agreement by mutual assent was in issue. There was therefore no error in the exclusion of the evidence offered. The case was properly submitted to the jury under instructions to find upon the evidence the value of the legal services of Mr. Bussell, and deduct therefrom the amount he had received, and return a verdict for the balance due him, if any. There was no error in the admission or exclusion of evidence in this aspect of the case, and no exception to the charge, except in so far as it involved the interpretation of the contract already considered. Judgment affirmed.