148 F. 169 (1st Cir. 1906), 610, Coram v. Ingersoll

Docket Nº:610.
Citation:148 F. 169
Party Name:CORAM et al. v. INGERSOLL.
Case Date:October 16, 1906
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 169

148 F. 169 (1st Cir. 1906)

CORAM et al.



No. 610.

United States Court of Appeals, First Circuit.

October 16, 1906

Page 170

Louis D. Brandeis (Thaddeus D. Kenneson and William H. Dunbar, on the brief), for appellants.

Edgar N. Harwood (John H. Hazelton and Hollis R. Bailey, on the brief), for appellee.

Before COLT and LOWELL, Circuit Judges, and ALDRICH, District Judge.

LOWELL, Circuit Judge.

Andrew J. Davis died a citizen of Montana, leaving property both in Montana and in Massachusetts. John A. Davis, one of his next of kin, offered for probate in Montana a will which gave to him nearly the whole of this property. Certain other next of kin, desiring to contest the will, retained as counsel Robert G. Ingersoll, a citizen of New York, the plaintiff's intestate. Shortly afterwards two of these clients agreed with him in writing for his employment, and for a fee of $100,000 conditioned upon the defeat of the will.

The validity of the will was tried in Montana, and the jury disagreed. Thereafter a compromise was entered into, by which Ingersoll's clients became entitled to a larger share of the Davis estate than would have fallen to them in intestacy. Only $5,000 was paid to Ingersoll. His widow, as ancillary administratrix of his estate in Massachusetts, brought this bill in equity to obtain a decree against one of the defendants personally for the payment of the contingent fee, and to establish a lien upon some part of the Davis estate in Massachusetts. On final hearing, the Circuit Court entered a decree for the complainant, from which the defendants have appealed. We need consider only one of their contentions, viz., that the complainant is barred by a judgment in their favor entered in Montana. In order that this defense shall avail them, the defendants must show that the Montana judgment relied on was rendered (1) for the same cause of action; (2) upon the merits; (3) between the same parties or their privies.

The present complainant, as administratrix of Ingersoll in New York, brought an action in Montana against the defendants in the

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case at bar. In addition to an allegation of the facts above stated, her complaint set out that Ingersoll had rendered the services for which the fee was to be paid, that his services had procured the compromise, and had defeated the will of Andrew J. Davis, so far as the defendants were concerned, whereby Ingersoll became entitled to the contingent fee as provided in the agreement, and to an equitable lien on the defendant's interest in the estate. An amendment added an allegation that, by reason of Ingersoll's prosecution of the suit to break the will, the representatives of John A. Davis were constrained to consent to the compromise, and that Ingersoll 'counselled, advised, and aided in the making and effectuating the said compromise agreement. ' The plaintiff in the Montana suit made substantially the same case as that set out in the present bill. The cause of action was the same in both suits.

After Mrs. Ingersoll had begun suit in Montana, Harris was duly appointed Ingersoll's administrator in that state, and, on motion of Mrs. Ingersoll, the original plaintiff in the Montana proceeding and the complainant here, he was substituted for her as plaintiff in the former suit.

The defendant's answer in that suit denied that Ingersoll performed the services contemplated in the agreement, that his services procured the compromise, and that his prosecution of the suit to break the will constrained the representatives of Davis to consent thereto. It set up the statute of limitations of Montana, and further alleged that during Ingersoll's lifetime he, together with Root and Coram, two of the defendants, upon a valuable consideration paid to Ingersoll by Root and Coram, 'canceled, revoked, satisfied, and held for naught' the agreement upon which the suit in Montana and this bill are founded. The plaintiff Harris in his 'reply' denied that the contract was canceled or revoked in any sense. In the district court of the Second judicial district of the state of Montana, in and for the county of Silver Bow--

'The parties hereto being present in court as on Wednesday, December 10, 1902, and the jury being present and answering to their names, the further trial herein is by the court resumed now, the opening statement on the behalf of plaintiff is resumed, and, being concluded, the introduction of testimony on behalf of plaintiff is commenced. Come now defendants and object to the introduction of any and all testimony on behalf of plaintiff upon the grounds that the complaint does not state facts sufficient to constitute a cause of action. After argument of counsel the motion to exclude testimony is by the court sustained, to which ruling of the court plaintiff by counsel duly excepts and is by the court granted 30 days' additional time to prepare and serve bill of exceptions herein, and upon motion of counsel for defendants the complaint herein is by the court ordered dismissed. * * * Whereupon the jury herein is discharged from further attendance of this cause.'

Thereafter judgment was rendered as follows:

'This cause having come on regularly for trial on the eleventh day of December, 1902, the parties appearing by their respective attorneys, and an objection having been made to the introduction of any evidence on the ground and for the reason that the amended complaint in said cause does not state facts sufficient to constitute a cause of action, and said objection having been considered by the court and sustained: Now, therefore, in consideration of the premises aforesaid and the law, it is ordered, adjudged, and decreed that

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the said action be dismissed and that the defendants recover of and from the plaintiff their costs and disbursements incurred herein, amounting to the sum of $12.50. Done in open court this twelfth day of December, 1902.'

The bill of exceptions does not appear in our record, but the case was taken to the Supreme Court of Montana.

The only question presented to that court, under the ruling of the court below and the plaintiff's exception thereto, was this: Did the complaint set forth facts sufficient to constitute a cause of action? On the one hand, the plaintiff contended that the compromise of the litigation was a defeat of the will, so far as Ingersoll's clients were concerned, and that the final decree which provided for a payment to the contestants of all they had claimed, although brought about by a compromise, was yet a complete performance by Ingersoll of the condition of the contract, and so entitled him to recover the stipulated fee. On the other hand, the defendants contended that the contract was conditioned upon a decree for the contestants setting aside the will; that the complaint itself showed that the payment to the contestants resulted, not from a successful contest, but from a compromise of the contest-- in other words, that the contract gave Ingersoll his contingent fee only if he conducted the contest to a successful termination, and that it did not provide for his payment in case the litigation was compromised by the parties, and the will admitted to probate-- that the failure to continue the litigation and the subsequent resort to negotiation and compromise, as set forth in the bill, were in effect an abandonment of the contract, and left to the plaintiff only the right to recover upon a quantum meruit for services other than those mentioned therein.

After stating the facts as alleged in the complaint, the opinion of the Supreme Court of Montana began thus:

'The action of the court in sustaining the defendants' objections to the evidence presents for decision the question whether the allegations in the complaint, which we have stated in substance, warrant recovery by the plaintiff. The complaint declares upon the contract, and unless it appears therefrom that the plaintiff's intestate fully performed the contract on his part, or facts and circumstances are alleged justifying a failure in any particular, a recovery cannot be had.'

The court analyzed the contract and adopted the defendants' construction of it. The opinion went on to declare that neither by his general retainer nor by the terms of the contract had Ingersoll authority to compromise the controversy, but only to prosecute the suit. Therefore his fee was payable only upon a favorable decree, followed by an actual distribution. When authority to compromise was conferred upon him, there was 'a mutual abandonment of the contract,' and 'when the compromise was consummated the contract could not be performed. ' 'The allegations of the complaint fall very far short of showing an entire performance of the contract. ' The mutual abandonment of the contract to which the court referred was that exhibited by the allegations of the complaint itself, and had nothing to do with the alleged cancellation of the contract for a valuable consideration set up in the answer and denied in the replication. From the opinion of the Supreme Court it thus plainly appears that the judgment of that court in favor of the defendants was based altogether upon the case

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presented by the complaint. No evidence and no amendment consistent with that complaint could have altered that judgment. If the contract made Ingersoll's fee contingent upon a defeat of the will by a successful contest (which was the interpretation put upon the contract by the Montana court), then Ingersoll never performed his contract, and could not maintain suit for the $100,000 fee. The Montana judgment was therefore based upon no formal defect in the plaintiff's pleadings, but upon the substantial want of merit in his cause of action.

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