Opinion
June, 1904.
Order reversed, and referee's report modified as directed in the opinion, and as modified confirmed, with costs and disbursements in the court below, but without costs of appeal.
Upon a consideration of the evidence which has been introduced by both parties in this proceeding, including the correspondence which passed between them, we have come to the conclusion that there was a misunderstanding between the parties as to what actually took place on the 19th or 22d of July, 1887. It seems to us clear that the crucial point which was discussed at that meeting was the question as to whether the appellants should receive a retainer of $250 before going into the trial of the action. The question as to the ten or fifteen per cent was undoubtedly discussed; but it was in connection with the demand for the payment of a retainer of $250; and the respondent, at least, did not understand that there had been a definite agreement for fifteen per cent and a relinquishment of the retainer of $250. This seems to be evidenced by her letter of July twenty-fourth, which was answered by the appellants on September 24, 1897. If it had been definitely determined at the meeting prior to the writing of the letter of July twenty-fourth, that Mr. Kellogg had waived his claim for a retainer of $250, the respondent would not have written in the strain in which she did. But it is urged that in this letter, the respondent used this language: "In the light of information gained since our last interview. I certainly consider that 15% should cover everything;" and that the understanding based upon this assertion was that no other charges for any services whatever were to be made, as the fifteen per cent was to cover everything. Upon an examination of this correspondence, it seems to us that it will be seen that the parties had in contemplation the trial which was imminent, and which it was expected would determine the question of the right to a recovery, and that the judgment would be paid if one was obtained upon the trial; and that all this conversation had between the parties related to that contingency, and the question of appeals was not contemplated by the respondent at least. And it seems to us that this view is strongly reinforced when the matter of the amount of the disbursements is spoken of. Mr. Kellogg, one of the appellants, agrees with the respondent that these disbursements shall not exceed the sum of $25, unless specially authorized. It is clear that if an appeal was to be taken from this judgment, the disbursements would necessarily far exceed the sum named; and the use of this language plainly implies that these parties had in mind the trial which was approaching, and it was that trial of which they were talking. It also appears from the letter written by the appellant (Mr. Kellogg) upon the eve of the argument in the Court of Appeals, which was not replied to by the respondent, that this understanding was that the services upon the appeals were to be compensated for, beyond the contingent fee of fifteen per cent and disbursements; and this statement of the situation upon the eve of the argument of that appeal was not dissented from by the respondent. Under these circumstances, it seems to us that the only conclusion that can be arrived at is that these parties did not reach a definite conclusion as to the compensation to be made, except as to the trial which was at hand. We think, however, that the allowance made by the referee for the additional services outside the trials of the action was somewhat more than the circumstances justified. It is true that there were several arguments of the case on appeal and one reargument; but those arguments were mere restatements of the same propositions; and we do not think they could be treated or considered as though they had been services rendered in separate cases. We think, therefore, that the allowance made by the referee of $5,837.96, should be reduced to the sum of $5,037.96. The order appealed from should be reversed, and the referee's report as thus modified should be affirmed, with costs and disbursements in the court below, but without costs of this appeal. O'Brien, McLaughlin, Hatch and Laughlin, JJ., concurred.