Blaisdell v. Ahern

• Decision Date: 07 May 1887
• Citation: 11 N.E. 681,144 Mass. 393
• Parties: BLAISDELL v. AHERN and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 393

11 N.E. 681

BLAISDELL v. AHERN and another.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1887

COUNSEL

N. Morse and J.L. Thorndike, for plaintiff.

The recital in the agreement that the defendants agreed the plaintiff should, "in view of the uncertainty of the result in their payment, be entitled to very large and liberal fees," etc., if it means that the plaintiff agreed to take no compensation for his services except in the event of success, does not correctly state the agreement of the parties; and, although it is evidence of the agreement it is not conclusive. The plaintiff offered evidence that there was no agreement to charge if nothing was recovered and that the condition of payment was only on account of the poverty of the defendants. He was to depend on success for his fees, not because that was a part of the agreement, but because the defendants would not otherwise have anything to pay him with. This construction of the agreement should be adopted if the other would make it criminal. Findon v Parker, 11 Mees. & W. 682, 684.

However it may be as to this part of the agreement, there was no champerty, for the plaintiff was not to have any share of the property recovered, or a remuneration proportional to the amount recovered. There cannot be champerty, though there may be maintenance, where there is not a sharing in the property recovered, and in every case of champerty there has been such a sharing. Thurston v. Percival, 1 Pick. 415; Lathrop v. Amherst Bank, 9 Metc. 489; Belding v. Smythe, 138 Mass. 530; Ackert v. Barker, 131 Mass. 436; Hutley v. Hutley, L.R. 8 Q.B. 112. If it was a part of the agreement that the plaintiff, who was not to furnish the evidence or the funds, should charge nothing unless successful, that would not make it champerty or maintenance. Jennings v. Johnson, L.R. 8 C.P. 425; McPherson v. Cox, 96 U.S. 404, 416; Christie v. Sawyer, 44 N.H. 298; Taylor v. Gilman, 58 N.H. 417. See Scott v. Harmon, 109 Mass. 238. It is lawful to assist a poor man, or for a master to assist a servant, without being guilty of maintenance; and so an agreement to take nothing, except in the event of success, would not make the agreement unlawful, even if it would have done so but for the poverty of the defendants, or their relation to the plaintiff. Harris v. Brisco, 17 Q.B.Div. 504; Thallhimer v. Brinckerhoff, 3 Cow. 624, 648; Lathrop v. Amherst Bank, ubi supra. It was not champerty to agree that, if successful, the plaintiff should have "very large and liberal fees, in no event to exceed fifty per cent. of the amount collected." The parties might properly have agreed upon a sum to be paid to the plaintiff for his services, however large and liberal the sum might have been. McPherson v. Cox, 96 U.S. 404, 416; Tapley v. Coffin, 12 Gray, 420, 422; Hubbard v. Woodbury, 7 Allen, 422. If "very large and liberal fees" were words of such definiteness that the amount could be judicially ascertained, there would have been nothing illegal in the agreement. But these words are so indefinite that they do not enable the plaintiff to claim anything more than reasonable compensation, and, by reason of the limiting words which follow, he could not have even that if it should exceed 50 per cent. of the amount collected. The transaction was clearly not within the statute. Pub.St. c. 160, § 6; Scott v. Harmon, 109 Mass. 237; Fowler v. Callan, 102 N.Y. 395, 399, 7 N.E. 169.

But if the agreement of January 18, 1878, was champertous, that of June 4, 1875, was not, and the plaintiff is at least entitled to recover for his services up to January 18, 1878. Thurston v. Percival, 1 Pick. 415.

If the provisions of the agreement of January 18, 1878, would render the agreement invalid according to the laws of Massachusetts, still it would be valid according to the law of New Hampshire, by which this agreement was governed. Pol.Cont. (3d Ed.) 555; Grell v. Levy, 16 C.B. (N.S.) 73. See Christie v. Sawyer, 44 N.H. 298, 303.

Even if the agreement amounted to champerty it would be simply void; and the plaintiff, as he was employed by the defendants, and they have had the benefit of his services, is entitled to reasonable compensation for his services, just as if the agreement had not been made. Grell v. Levy, ubi supra; In re Masters, 1 Har. & W. 348; Ackert v. Barker, 131 Mass. 438; Add.Cont. (6th Ed.) 883; Chit.Arch.Pr. (12th Ed.) 117, 125. The auditor's report is evidence of the matters stated in it. Coker v. Ropes, 125 Mass. 577.

E.O. Cooke and J. Bennett, for defendants.

The plaintiff is bound by his declaration, and the court was right in its ruling, although no demurrer had been filed. Hervey v. Moseley, 7 Gray, 479; Hubbard v. Mosely, 11 Gray, 170; Montague v. Boston & F.I. Works, 97 Mass. 503; Oliver v. Colonial Gold Co., 11 Allen, 283. The contract was made in this commonwealth; the plaintiff was domiciled here; the services were largely rendered here; the forum is here. The declaration sets forth a contract clearly champertous. The written agreement contains a recital of all the essential terms of, if it does not exactly repeat, the oral agreement. By this recital all parties are bound. Whart.Ev. 920, and cases cited. The agreement as stated in the declaration, and the written agreement annexed to it by leave of court, and in answer to a motion that the contract declared upon should be stated in substance, or a copy annexed, are clearly champertous. Pub.St. c. 160, § 6; Swett v. Poor, 11 Mass. 549; Thurston v. Percival, 1 Pick. 415; Lathrop v. Amherst Bank, 9 Metc. 489; Ackert v. Barker, 131 Mass. 436; Belding v. Smythe, 138 Mass. 530; Wood v. Downes, 18 Ves. 120. So much of the auditor's report as gave an interpretation of the contract different from that set forth in the declaration and in the written contract was in excess of the authority conferred upon him by the rule, and, being erroneous as matter of law, should have been stricken out, and, although admitted, could not in any way alter the contract as set forth in the declaration and proven by written agreement. Briggs v. Gilman, 127 Mass. 531. As has been hereinbefore said, the plaintiff was bound by the allegations in his declaration. Pub.St. c. 167, § 75; Snowling v. Plummer Granite Co., 108 Mass. 100. The contract was a Massachusetts contract, and should be interpreted under Massachusetts law. Blanchard v. Russell, 13 Mass. 4; Coolidge v. Poor, 15 Mass. 427; Pine v. Smith, 11 Gray, 38; French v. French, 116 Mass. 361. Therefore the decision of Christie v. Sawyer was not admissible as evidence, but, being admitted, has no other weight than a decision of the New Hampshire courts bearing upon the question of what the law is in this state.

OPINION

W. ALLEN, J.

This is an action by an attorney at law to recover for professional services. The only question argued is whether the services were rendered under a contract illegal for champerty or maintenance, so that no compensation can be recovered for them. The parties were residents of this commonwealth. The defendants were children of a father who had been a stranger to his family for years. They earned their living as domestic servants, and one or more of them had lived in the family of which the plaintiff was a member, and had known him from boyhood. They heard that their father had died in New Hampshire, leaving estate there, and consulted the plaintiff in regard to recovering it, and gave him a power of attorney to collect their shares of it. They had no means except their earnings, and were unable to defray the expense of legal proceedings. The plaintiff verbally agreed with them to take charge of their case upon terms that they should furnish money for all actual expenses, and that in the event of success he should charge more for his services than if he was sure of his pay in the outset. The plaintiff rendered services under this agreement. The case was tried in the probate court in New Hampshire, and a decision rendered adverse to the defendants, and an appeal taken to the supreme court. Pending this appeal there was some difference...