Bachman v. Lawson

Edward Jordan, for plaintiffs in error.

Frederic B. Jennings, for defendants in error.

GRAY, J.

This action was brought in the superior court of the city of New York, by the members of the firm of Lawson & Walker against the members of the firm of Bachman Bros., to recover compensation for services performed under a written agreement between them, dated April 25, 1871, which recited that the defendants had employed, and by power of attorney of the same date had authorized, the plaintiffs to collect their 'claim arising out of the capture of the ship Commonwealth and her cargo by the armed rebel cruiser, the Florida;' and by which the plaintiffs agreed 'to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time;' and the defendants, in consideration of the premises, agreed to allow and pay to the plaintiffs 'a compensation equal to twenty-five per cent. of weatever sum shall be collected on the said claim.' By the power of attorney referred to in this agreement, the defendants appointed the plaintiffs their attorneys to prosecute and collect the claim by such lawful proceedings and means as to them might appear expedient, but at their own cost and charge; and authorized them to receive on the defendants' account whatever sums of money might be awarded on the claim, and to give in their name proper acquittances therefor; to execute all papers necessary to secure the transfer of the claim to any party, department, or government which might assume the payment thereof; and to employ for the prosecution of the claim such attorneys as they might think fit. The plaintiffs, who were average adjusters, filed an abstract of the claim in the department of state, and in accordance with the instructions issued by that department, and from papers and information furnished by the defendants, prepared a memorial, giving a full history of the circumstances relating to the claim; and afterwards went to Washington several times about this and other like claims; and after the passage of the act of congress of June 23, 1874, c. 489, establishing the court of commissioners of the Alabama claims, prepared and sent to the defendants for signature a petition to be presented to that court, which, although repeatedly asked for, was never returned; and the defendants, after endeavoring to induce the plaintiffs to release the from the agreement, employed an attorney at law to prosecute their claim before that court, which he did, and recovered thereon the sum of $3,034.16. The plaintiffs brought this action to recover 25 per cent. of this sum, less $125, the estimated expense which they would have incurred had they proceeded and recovered the money. The defendants, besides other defenses presenting no federal question, contended that the agreement sued on had been annulled and rescinded by the act of 1874. The judge presiding at the trial overruled the objection, and the jury returned a verdict for the plaintiffs, on which judgment was rendered. The defendants appealed to the general term of the superior court, at which the judgment was reversed and a new trial ordered. The plaintiffs appealed to the court of appeals, which reversed the judgment of the general term, and remitted the case to the superior court for further proceedings. See 81 N. Y. 616. The superior court thereupon entered judgment in accordance with the verdict, and the defendants sued out this writ of error.

In support of the writ of error it was contended that the agreement sued on had relation solely to the claim which existed at its date; that that claim was extinguished by the operation of the treaty of Washington, the Geneva award, and the payment by Great Britain to the United States of the sum awarded; and that the claim successfully prosecuted under the act of congress and before the court of commissioners was a new claim, created by that act, and after the making of the agreement; or, if it could be treated in any respect as the same claim, was so changed in its character and circumstances that the agreement had no application to it. But, as was said by Mr. Justice STORY, delivering the judgment of this court, in a similar case: