Creditors' Nat'l Clearing House, Inc. v. Bannwart

• Decision Date: 29 June 1917
• Citation: 116 N.E. 886,227 Mass. 579
• Parties: CREDITORS' NATIONAL CLEARING HOUSE, Inc., v. BANNWART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 579

116 N.E. 886

CREDITORS' NATIONAL CLEARING HOUSE, Inc.,

v.BANNWART.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1917.

Exceptions from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action by the Creditors' National Clearing House, Incorporated, against Emilie T. Bannwart. Verdict for defendant, and plaintiff excepts. Exceptions overruled.W. Hector, S. Kollmyer, David B. Young, and Chas. A. Quint, all of Boston, for plaintiff.

Jos. B. Jacobs, Hale & Dickerman, and Jacobs & Jacobs, all of Boston, for defendant.

LORING, J.

The plaintiff is a Rhode Island corporation chartered (inter alia) ‘to establish, maintain, conduct and operate an office or offices for the general practice of the law in all its branches; to advise, assist and render all legitimate services in all sorts of legal business.’ On September 10, 1912, it made a written agreement with the defendant. The written agreement was made by filling out two blanks one on the face and the other on the back of the same piece of paper, the plaintiff's agreement being set forth on the face and the defendant's on the back. By the terms of the contract set forth on the face the plaintiff agreed ‘to use its best efforts and discretion in the enforcement of all claims accepted by it for collection’ charging as commissions percentages on collections made varying from 25 per cent. (the percentage in case of collections amounting to $20 or less) to 5 per cent. (the percentage in case of payments above $5,000) and different percentages on sums between the two. After making these provisions the blank proceeds in these words: ‘Provided that in place of an attorney's fee or advance for disbursement costs and expenses there will be charged an amount equal to 15 per cent. in addition to the above rates on each payment after the claim shall have been palced in the law department for enforcement.’ Across the face of this blank are stamped these words: ‘Free legal advice.’ On the back of the same paper the blank setting forth the agreement of the defendant states that the subscriber will pay to the ‘Clearing House’ the percentages or commissions stated on the face of the paper and also a yearly fee of $60. The subscriber agrees ‘not to accept payments on any claim after receiving written notice that the same has been transferred to the law department for attention.’ This blank ends with the provision that ‘this agreement may be terminated by notice in writing given to said Clearing House at its executive offices at least sixty days before the expiration of any yearly period.’ After September 10, 1912 (when this agreement between the plaintiff and defendant was executed), the defendant placed in the plaintiff's hands several demands for collection. Nothing was realized from them. On March 24, 1915, it brought this action to recover from the defendant two yearly fees of $60 each on the ground that by virtue of the last clause of the agreement the contract continued in force until notice was given to terminate it. To this action the defendant set up as a substantive defense ‘that the plaintiff held itself out to be lawfully qualified to practice law in the courts of this commonwealth.’ At the trial the judge instructed the jury that if by the true construction of the agreement between it and the defendant (construed in the light of the way in which it conducted its business) the plaintiff maintained a law department the affirmative defense set up in the answer was made...