Wilson v. PANTASOTE COMPANY

Decision Date02 April 1958
Docket NumberDocket 24828.,No. 179,179
PartiesRichard W. WILSON, individually and as assignee of Gustave Simons, Plaintiff-Appellant, v. The PANTASOTE COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Richard W. Wilson, New York City, (Gustave Simons, New York City, on the brief), plaintiff-appellant pro se.

Milton Kunen, New York City (Donald H. Balleisen and Kaye, Scholer, Fierman, Hays & Handler, New York City, on the brief), for defendant-appellee.

Before HINCKS and LUMBARD, Circuit Judges, and GALSTON, District Judge.

LUMBARD, Circuit Judge.

This is an appeal from an order of Judge Dimock, Southern District of New York, entering summary judgment for the defendant. The defendant-appellee moves to dismiss the appeal. Because of our disposition of the motion to dismiss, we find it unnecessary to pass on the merits of the case.

The plaintiff is an attorney and sued individually and as assignee of another attorney to collect a fee allegedly due for handling certain tax matters for the Pantasote Company. The complaint sounds in quantum meruit. The defendant answered alleging the existence of a written retainer agreement whereby the defendant's general counsel was to fix the fair and reasonable value of the services; that under such agreement general counsel had set plaintiff's assignor's fee at $10,000; and that a check for $7,500 had been tendered in full payment thereof, $2,500 having been paid previously. A counterclaim was interposed praying for declaratory judgment limiting the defendant's liability to the $7,500. The plaintiff filed a reply admitting the existence of the retainer but denying that the plaintiff was bound by it. A motion for summary judgment was thereafter made by the defendant and Judge Dimock granted it holding that the contract controlled in the absence of a showing to the contrary by the plaintiff. Judgment was entered for the plaintiff for $7,500. A notice of appeal was thereupon filed by Wilson. Shortly thereafter he assigned his interest to the original assignor Gustave Simons. A motion to replace Wilson with Simons was denied by Judge Cashin on August 7, 1957.

On September 3, 1957 Simons, the then owner of the claim, wrote to the counsel for the defendants demanding payment of the $7,500 for which the judgment had been entered. The defendant through its counsel forwarded a check to plaintiff's counsel for that amount with a covering letter stating that payment was tendered as full satisfaction of the claims and noting their understanding that this would be dispositive of the appeal. The check was endorsed by the plaintiff and cashed.

On November 15, 1957 a motion to dismiss the appeal on the ground that the plaintiff was estopped by his acceptance of the payment was denied by this court without prejudice to renewal upon the argument of the appeal. On argument the motion was renewed on the same ground. The appellant contends that the acceptance of the money could work no estoppel as that amount of money was absolutely owing as a...

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4 cases
  • diLeo v. Greenfield
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 1, 1976
    ...if this is considered a case in which a litigant accepts the benefits of a judgment on which his appeal is based, see Wilson v. Pantasote Co., 254 F.2d 700 (2d Cir. 1958), we do not believe that an appeal is precluded. Subsequent to the decision of this court in Wilson, the Supreme Court es......
  • Cherokee Nation v. United States
    • United States
    • U.S. Claims Court
    • January 21, 1966
    ...party who asserted this defense in these cases was the client. Smith v. Morris et al. 69 F.2d 3 (3rd Cir. 1934); Wilson v. Pantasote Co., 254 F.2d 700 (2d Cir. 1958). In the present case, the client is the Cherokee Nation, and it has not asserted the defense of waiver or estoppel. On the co......
  • Fidelcor Mortg. Corp. v. Insurance Co. of North America, 86-3507
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 29, 1987
    ...and intentionally, and with knowledge of the facts, he waives the right to appeal from an otherwise adverse judgment. Wilson v. Pantasote Co., 254 F.2d 700 (2d Cir.1958); Lanier v. Sallas, 777 F.2d 321 (5th Cir.1985); Spanel v. Berkman, 171 F.2d 513 (7th Cir.1948), cert. denied, 336 U.S. 96......
  • Davis v. Jones
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 8, 1958
    ... ... A copy was furnished to the surety company which executed as surety the bond of the trustee. And a copy found its way into the files of the ... ...
1 books & journal articles
  • Avoiding a Quagmire: Acquiescence in a Judgment as a Bar to Appeal by Casey R. Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 89-7, October 2020
    • Invalid date
    ...of Angelica, 34 F.2d 658, 659 (2d Cir. 1929). [43] Spencer v. Babylon R. Co., 250 F. 24, 26 (2d Cir. 1918). [44] Wilson v. Pantasote Co, 254 F.2d 700 (2d Cir. 1958). [45] Allen v. Bank, 34 F.2d at 659 (emphasis added). [46] Huet-Vaughn, 267 Kan. 144, 978 P.2d 896 (1999). [47] Id. 267 Kan. a......

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