Henriques v. Vaccaro

• Decision Date: 05 November 1951
• Docket Number: No. 40098,40098
• Citation: 220 La. 216,56 So.2d 236
• Parties: HENRIQUES v. VACCARO.
• Court: Louisiana Supreme Court

Page 236

56 So.2d 236

220 La. 216

HENRIQUES v. VACCARO.

No. 40098.

Supreme Court of Louisiana.

Nov. 5, 1951.

Rehearing Denied Dec. 10, 1951.

Fred S. Weis, New Orleans, for plaintiff-appellant.

Dart, Guidry & Price and Edward F. Wegmann, all of New Orleans, for defendant-appellee.

MOISE, Justice.

Plaintiff, an attorney-at-law, is appealing from an adverse judgment in the district court, holding that he was estopped from prosecuting his claim for the balance allegedly due under a contingent fee contract with Lucas J. Vaccaro, by virtue of having previously had certified a check tendered by Vaccaro in full settlement of said fee.

The record discloses the following facts:

On October 8, 1946, Henriques agreed to represent Lucas J. Vaccaro in the latter's controversy with other stockholders of Tropical Ice Company, Inc., in which defendant was attempting (1) to prevent an amendment of the corporate charter which would have thereby conferred upon it the powers of a holding corporation with the right to deal in investments or speculations and (2) to force the corporation into liquidation with the ultimate purpose of effecting purchase of his stockholding at its 'fair and equitable value'. The fee contract consists of a letter of employment, addressed by defendant Vaccaro jointly to appellant and John J. Finnorn, another attorney. (Mr. Finnorn is not a party to these proceedings.) The following provisions of the fee contract are pertinent:

'If you will accept this employment, I agree to pay you fees graduated as follows:

'I can now sell this Corporation my stock for about $250.00 per share, but I figure its true value is in excess thereof. So on any amount for which I sell my stock in excess of $250.00 per share, or for which I might sell any asset received in liquidation, which figures in excess of $250.00 per share, and up to $500.00 per share, I will pay you a fee of 10 percent (10%); similarly on any sum in excess of $500.00 per share and up to $750.00 per share, I will pay you a fee of 12 1/2% and on any sum realized above $750.00 per share, I will pay you a fee of fifteen percent (15%); all of this, of course, to be contingent upon success in helping me obtain either in cash or assets an excess value over $250.00 per share.

'All necessary costs, including court costs, and other expenses authorized by me to be in addition to the graduated fees mentioned above.

'I couple your employment in this matter with an interest in the stock, and agree not to make any settlement of this matter in whole or in part, or to sell this stock or any part thereof without your knowledge and full co-operation and consent.'

As a result of mutual efforts on the part of attorneys and client, defendant was successful in achieving both of the objectives stated supra. The liquidation of the corporation was effected; and on January 7, 1947, Vaccaro received his share of the distribution in kind made of its assets--$29,829.95 cash and 703 shares of the capital stock of Banco Atlantido of LaCeiba, Honduras (there was reserved for continencies $3,815.45.)

On January 8, 1947, Vaccaro wrote Henriques, enclosing check in the amount of $1,309.42, representing the latter's 45% share of the fee (Finnorn's share was 55%); in said letter the fee calculation was explained thus:

'* * * I have this date received settlement from the Tropical Ice Company and am outlining below for your information the basis of settlement from the Tropical Ice Company and likewise the basis of our agreement.

'278 1/2 shares of Tropical Ice Co. stock basic value $250.00 per share--$69,625.00.

'I received from the Tropical Ice Company in liquidation $29,829.25 cash together with 703 shares of the stock of Banco Atlantido. The best quoted offer to buy was on a basis of $98.00 per share which indicates a value of $68,894.00 for the 703 shares. Therefore, the total value received in exchange for 278 1/2 shares of the Tropical Ice Company stock was $98,723.25. Therefore, the excess value over the price of $250.00 per share is $29,098.25.

'Since the contract called for 10% of the excess over $250.00 per share, the total fee amounts of $2,909.82. Consequently, I am enclosing in full settlement of the contract my check in the amount of $1,309.42, which I understand is the 45% division for your proportion under the contract.'

This letter did not reach Henriques until nearly a week later, and he promptly rejected both the computation of the fee and the offer of the check in full settlement thereof:

'* * *

'I am aware of the status of the liquidation settlement of the Tropical Ice Co., Inc. in Liquidation, but must advise that your calculation of the fee due me under our contract of October 8th, 1946 is based on the erroneous assumption that the value of the stock received in partial liquidation can be arbitrarily estimated. This should be clear to you if you will examine the contract itself.

'The 703 shares of the stock of the Banco Atlantido which you received as partial settlement of your interest, are worth considerably more than the $98.00 per share; in fact your own Accountant placed a value largely in excess thereof, not including real estate, or banking facilities shown on the Bank's statement at only $2.00.

'* * * Mr. D'Antoni [Carmello D'Antoni, president of Tropical Ice Co., Inc.] was unable to give us the exact value of the real estate holdings of the Banco Atlantido, but he did say that the Banking House in LaCeiba alone would cost at least $100,000.00 to replace. He referred us to C. G. Robinson & Co., their Accountants, for further details, which details will be secured at as...