Hodges v. Grapel

• Decision Date: 05 March 1889
• Citation: 112 N.Y. 419,20 N.E. 542
• Parties: HODGES v. GRAPEL et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 419

20 N.E. 542

HODGES

v.GRAPEL et al.¹

Court of Appeals of New York.

March 5, 1889.

Appeal from supreme court, general term, First department.

Claim presented by Phoebe A. Grapel and Robert Brown, as administrators of Gerhard Henry Koop, deceased, to N. D. Carlisle Hodges, as administrator of Horace D. Carlisle, deceased. Koop had entered into an agreement with the firm of N. D. Carlisle & Son, reciting that whereas such firm held certain claims for damages committed by Confederate cruisers, they had constituted the said Koop their true and lawful attorney for them, and in their name, place, and stead to ask, demand, and receive, and to take all lawful ways and means to collect, said claims, and that, in consideration of the services to be rendered by the said Koop, he and his legal representatives and assigns should be entitled to retain 25 per cent. of the amount collected. The claim presented was for services rendered by Koop, under such contract, and having been sent to a referee, a report was made in favor of the claimants, which was confirmed by order of the special term. The general term affirmed the order of the special term, and the defendants now appeal to this court.

Thorndike D. Hodges, for appellant.

Henry G. Atwater, for respondents.

FINCH, J.

Neither Manning nor Nickerson were partners of Koop in the contract sued upon, and the objection founded on that allegation of a defect of parties plaintiff is not well taken. They were merely agents or employes of Koop, whose services were to be rendered in his behalf, and whose compensation was to be measured by an agreed proportion of the ultimate profits realized by the employer. The referee does not find, and was not requested to find, the fact of any such partnership, and there is no trace in the history of the reference of any such question raised for decision. There can be no doubt, even if we recur to the proofs, that Manning was but an agent and attorney of Koop, and I think the same thing is true of Nickerson. He was examined as a witness, and while he speaks of a joint interest with Koop it seems merely to refer to the measure of compensation; for he says explicitly, in stating his relation with Koop, ‘I had an agreement with him, and under that agreement I was employed to assist in the prosecution of the so-called ‘Alabama Claims.” For the assistance rendered under that employment he was to have one-half of the profits realized by Koop, but no actual partnership or intent to constitute that relation is to be inferred from his evidence. The further argument rests largely upon an idea that the writing signed by Koop and the firm of Carlisle & Co. was merely a power of attorney, not coupled with an interest which ended and was revoked by the dissolution of that firm and the death of the surviving partner; and since nothing up to that time had been recovered upon the claim for war premiums paid, no right to compensation accrued to Koop, and he merely lost his services through a risk which he had taken upon...