Comstock v. Flower ( 1904 )

BLAND, P. J.

(after stating the facts). — 1. Defendant strenuously contends that the following clause in the contract shows it to be champertous, to-wit: “But we are not to be liable hereunder for any expenses which may be incurred by said Albert Comstock in pursuance of this agreement, nor for any sums whatever, except in the event of a recovery as stated above, then only to the extent above named.” This clause of the contract should be interpreted by what the parties had in contemplation at the time, to-wit, the prosecution of protests against what was claimed to be excessive levies of import duties on importations of flexible metallic tubing by the defendant. As shown by plaintiff’s letter of December 13, 1901, he expressed himself hopeful of securing a favorable ruling from the general board of appraisers, but if not, then he agreed to prosecute the protests to a decision in the Federal courts at his own expense. The accrual of costs is a necessary incident to the prosecution of any suit in the courts. This cost is usually taxed to the losing party, and this contract, in the light of the letter of December 13th, must be construed as obliging plaintiff to pay all costs that might accrue, in the prosecution of an appeal from the board to the United .States courts, and be taxed against the defendant and other parties who had made similar contracts with plaintiff and who should be made parties to the court proceeding. In this State, an agreement by an attorney to pay all or some portion of the court costs to accrue in a suit, which he is employed to prosecute, is champertous. [Duke v. Harper, 66 Mo. 51.] But the answer is a general denial. Under this plea, the defense' that the contract was voidable for the reason it was champertous, is not available. Champerty is an affirmative defense and if the defendant would avail himself of it he should have set it forth in his answer. [Moore v. Ringo, 82 Mo. 468; Pike v. Martindale, 91 Mo. 268, 1 S. W. 858; Bick v. Overfelt, 88 Mo. App. 143.]

2. It is contended that the contract embraced only protests to be filed in the future, that is, protests filed after the execution of the contract and hence the protests, on which the $962.67 was refunded, having been made long prior to the date of the contract, are not covered by it. The language of the contract is, “We (defendant), the undersigned, hereby respectively retain said Albert Comstock as our attorney and authorize him to act as our attorney and agent for the recovery and collection of excessive customs duties charged on all flexible metallic tubing made by us for our respective interests.” Further on the instrument reads as follows: “We (defendant) also agree to give said Albert Comstock timely and sufficient notice of each importation, and of all official transactions connected therewith. ’ ’ These two clauses of the contract indicate that excessive duties on all importations theretofore paid or that might be paid in the future were intended to be included in the contract. But the following clause in plaintiff’s letter of December 13, 1901, shows that plaintiff was not aware that defendant had any protest on file at the time and that he had in contemplation the making of a contract in respect to protests to be filed in the future: “If you have any entries of these goods which are not yet liquidated, or which have been liquidated within a few days, or if you expect to make any entries, I shall be glad to have you sign the enclosed contract covering the issue, and at the same time to send me immediate notice of any such entries. If you have lodged any protests yourself, I will arrange to control them in your behalf.” In his answer to the letter of December 13th, defendant made no reference to his protest then on file, informing the plaintiff that he had no entries in the custom house and had not had for a few days past but would advise plaintiff of those that came along in the future. We think these lettters show that the protests defendant then had on file were not in the mind of either party at the time the contract was signed; but this fact does not necessarily take them outside the boundaries of the contract, in view of the fact that the formal contract covers all protests, and in the light of the evidence that after the test case of Larzelere & Co. had been heard and a favorable opinion rendered thereon by the board of appraisers, the two protests of the defendant made in the name of Wyman & Co. were taken up by Strauss, a clerk in plaintiff’s office, and presented to the board of appraisers and favorable decisions rendered thereon, one on May 22nd, and the other on August 20, 1902, copies of which were sent to' and received by the collector of customs at St. Louis, who then reliquidated the impost duties and made out refund certificates to Wyman & Co., on which the $962.67 was collected and paid to defendant; and in the light of defendant’s letters, one in answer to plaintiff’s letter of June 11,1902, and the other dated June 18,1902, in which he not only recognized the fact that these two protests were embraced in the contract but acknowledged that plaintiff had rendered the services he agreed to render under the contract and had earned his commission. These letters went further and authorized plaintiff to take out his commission if the refund money should first come into his hands and promised if the money should come to defendant, he would promptly remit one-half of the amount to plaintiff in payment of his commission. Whatever ambiguity or uncertainty, therefore, there may be in the language of the contract in respect to these two protests, as interpreted by the letters, is cleared up by this correspondence, and it is made absolutely certain that both plaintiff and defendant did understand that they were embraced in the contract, and that plaintiff was entitled to his commission as per contract. The defense is made up of a number of technical but unmeritorious objections to the evidence plaintiff-offered, and of a strained construction of the contract. The record, taken as a whole, shows beyond the shadow of a doubt that plaintiff earned the commission he sued for, that defendant acknowledged he had earned it and promised to pay it. The judgment holds him to his promise and is affirmed.

All concur.