Leslie v. York

• Decision Date: 12 February 1902
• Citation: 112 Ky. 712,66 S.W. 751
• Parties: LESLIE et al. v. YORK et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 751

112 Ky. 712

LESLIE et al. v. YORK et al. ^[1]

Court of Appeals of Kentucky.

February 12, 1902

Appeal from circuit court, Pike county.

"To be officially reported."

Action by J. M. York and others against A. P. Leslie and others to settle estate of James H. Leslie, deceased. Judgment allowing claim of J. M. York and A. J. Auxier, and Kate Leslie and others appeal. Reversed.

J. M Roberson, M. W. Maynard, and P. B. Stratton, for appellants.

York &amp York and Auxier & Auxier, for appellees.

DU RELLE, J.

There is but one question necessary to the decision of this case and that is the proper construction to be placed upon the word "recover" in the following contract of employment: "I have employed Auxier & York to institute a suit in the Pike circuit court vs. M. Schaumberg for fraud in land sale, in giving falsely the number of acres: Now I agree to pay them an amount equal to one-half they may recover, and if they do not recover I am to pay them nothing. This May 10, 1892. James H. Leslie." The claim of appellees against Leslie's estate is for an amount equal to one-half the amount of the judgment obtained October 11 1900, by the personal representative of James H. Leslie deceased, against M. Schaumberg for $2,340. Various questions are made by appellants, but in the present condition of the case are not necessary to be, and are not, decided. For appellees it is insisted that in the contract quoted "recover" means to obtain judgment; that the attorneys in such contract do not guaranty the solvency of the judgment debtor, and that when they have recovered a judgment they have done all they are required to do to entitle them to compensation. In support of this contention they rely upon the case of In re Stretton, 15 Law J Exch. 16, 14 Mees. & W. 806, in which it was held that in an undertaking by a solicitor to his client that, "should the damages or costs not be recovererable in this action, I shall charge you costs out of purse only," the result of the action, and not the solvency of the defendant therein, was referred to. We do not think this is a fair construction of the word "recover" as used in this contract. The word "recover" is habitually and properly used in connection with the word "judgment." It is a perfectly correct use of the word to say that the plaintiff recovered a judgment for a named sum. But in this contract the agreement is to pay "an amount equal to one-half they may recover." It is not "an amount equal to one-half of the judgment they may recover." "Recover," as defined by Kinney's Law Dictionary, means: "To obtain by course of law; to obtain by means of an action; to succeed in an action." To the same effect is the definition in Anderson's Law Dictionary. In the American & English Encyclopedia of Law (volume 20, p. 604) it is defined thus: "To recover in law is to recover anything, or the value thereof, by...