Fisher v. Mylius

• Decision Date: 05 December 1896
• Parties: FISHER. v. MYLIUS.
• Court: West Virginia Supreme Court

26 S.E. 309

42 W.Va. 638

FISHER.

v.MYLIUS.

Supreme Court of Appeals of West Virginia.

Dec. 5, 1896.

Contract with Attorney—Construction.

A client, under a contract whereby he agrees to pay an attorney for the prosecution of an action a fee of $50, and also a percentage of the damages which he may "recover" in the action, is not liable for such percentage of the judgment obtained, but only for a percentage of the damages received.

Error to circuit court, Upshur county.

Action by John E. Fisher, for the use of W. H. Fisher, against Charles E. Mylius. There was a judgment for plaintiff, and defendant brings error. Reversed.

A. M. Poundstone and John Brannon, for plaintiff in error.

J. S. Fisher, for defendant in error.

DENT, J. John E. Fisher, for the use of W. H. Fisher, brought an action of assumpsit in the circuit court of Upshur county on the following written contract: "Whereas, John S. Fisher has been heretofore employed by me to prosecute a suit against James L. Smith and Floyd G. Smith for assault and battery, and said suit is now pending in the circuit court of Upshur county, 1 agree and bind myself to pay said Fisher for his services rendered and to be rendered in said suit a certain fee of fifty dollars, now due, and to pay said Fisher in addition fifteen per cent. of the damages which I may recover in said action. Witness my hand this 10th day of November, 1886. Chas. E. Mylius." The issue was made up and the case was submitted to the jury with the following instruction from the court, excepted to by the defendant: "(1) If the jury believe from the evidence that in the action at law formerly pending in this court, wherein C. E. Mylius was plaintiff and Floyd G. Smith and James L. Smith were defendants, mentioned in the evidence, the said Mylius recovered judgment on the 15th day of October, 1887, for $2,200, then, under the contract dated 10th November, 1886, signed by Chas. E. Mylius, the jury should find in favor of the plaintiff as to that item to the extent of fifteen per cent. of said $2,200, with interest thereon from the said 15th day of October, 1887." The jury returned a verdict for the plaintiff. The defendant moved the court to set aside. The court overruled the motion, and entered judgment. On writ of error obtained by the defendant the question now presented to the court is as to the meaning of the words, "And to pay said Fisher in addition fifteen per cent. of the damages which I may recover in said action."

In the case of Powell's Adm'x v. Powell, 84 Va. 415, 4 S. E. 744, the word "recover, " used in a statute, was held to mean "receive"; that is, the actual receipt of money, and not the mere entering of a judgment therefor, even though the money be paid without judgment. And in the case of Stro-hecker v. Bank, 6 Pa. St. 41, it was held that "one of the technical definitions of the word 'recovery' is the actual possession...