Ely v. Spofford ( 1861 )

Clerke, P. J.

There is nothing in the contract, upon which this action is founded, to warrant the construction that the plaintiff should be entitled to no compensation, except in the event of the abandonment of the contract between the defendants and Douglass and Ogden, or the failure of the latter to perform it. The restriction, that the contract between the plaintiff and defendants should not interfere with any arrangement previously made, was evidently not intended to prevent the plaintiff from proceeding to recover from the treasury the excess of duties claimed by the defendants. Otherwise it would have been perfectly futile to make any arrangement at all with the plaintiff, unless it was probable that Douglass and Ogden intended to make no efforts, under their contract. Of this there was no indication whatever, at the time the defendants made the agreement with the plaintiff. It was possible, of course, that Douglass and Ogden might not be able to succeed in their efforts to recover the excess of duties, and that the plaintiff might. In that case the plaintiff would be entitled to one half of the amount of the recovery ; but it is clearly reconcilable with the intention and purpose of all the parties to both contracts that if Douglass and Ogden should contribute to the recovery, they should be entitled to one third.

I think, therefore, that the fair construction of the agreement under consideration is, that the plaintiff may co-operate, without interfering, with Douglass and Ogden; that he should be entitled to compensation to the extent of his services, not exceeding one half of the amount of the duties recovered, and that, in no case, should the compensation given to both sets of agents, for the whole service, be more than that one half.

To ascertain the amount of the plaintiff's compensation, the referees have taken the difference between one third of the duties allowed by the defendants to Douglass and Ogden and one half; to which the plaintiff would be entitled if the recovery had been effected exclusively through his aid, and they have allowed to him the difference as the measure of what his services were worth.

The judgment should be affirmed, with costs.

[New York General Term, September 16, 1861.