Quarture v. Allegheny County

• Decision Date: 20 July 1940
• Docket Number: 196-1940
• Parties: Quarture et ux., Appellants, v. Allegheny County et al
• Court: Pennsylvania Superior Court

14 A.2d 575

141 Pa.Super. 356

Quarture et ux., Appellants, v. Allegheny County et al

No. 196-1940

Superior Court of Pennsylvania

July 20, 1940

Argued May 3, 1940.

Appeal from decree of C. P. Allegheny Co., Oct. T., 1937, No. 607 in case of Peter Quarture et ux. v. County of Allegheny et al.

Petition by attorney for payment of amount of verdict into court and distribution thereof.

The facts are stated in the opinion of the Superior Court.

Order of distribution entered, before Marshall, Smith and Kennedy JJ., opinion by Smith, J., Kennedy, J., dissenting. Plaintiffs appealed.

Error assigned, among others, related to the action of the court below in dismissing plaintiffs' exceptions.

Decree reversed.

John R Bowman, for appellants.

John A Metz, Jr., with him John A. Metz, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.

OPINION

Stadtfeld, J.

The appellants, Peter Quarture and Pearena Quarture, his wife, in September, 1936, were the owners of real estate, by the entireties, located in South Fayette Township.

State Highway Route 545 had been widened and relocated on this property of the appellants, causing considerable damage.

Peter Quarture retained Mayer Sniderman, Esq., on September 24, 1936, to represent him and his wife, Pearena Quarture, in their claim against Allegheny County. On that day, Mayer Sniderman prepared a power of attorney naming himself as their lawful attorney to represent them in their cause of action against the county. The power of attorney contained provisions that Mayer Sniderman would prosecute to final determination, if necessary, any action or suit for the sum of ten per cent of all that might be recovered; expenses of $ 150 to be deducted from the gross award.

The claim was heard before the Board of Viewers and the sum of $ 1,650 was awarded. Thinking this was inadequate, Peter Quarture took an appeal through his attorney, Mayer Sniderman, to the court of common pleas. The case went to trial and the jury returned a verdict of $ 2,961 on December 8, 1938. There is conflicting testimony as to what fee Mayer Sniderman was to receive for the jury trial. Peter Quarture relied on the written agreement, while Mayer Sniderman set up an oral contract which gave him 33-1/3% of the verdict. In June of 1939, Mayer Sniderman presented a petition to the court praying that the verdict be paid into court and distribution made and that the fund of $ 2,961 be charged with a lien to the extent of $ 987 for the services of Mayer Sniderman. An answer was filed by Peter Quarture to this petition and the case was heard before Smith, J., on transcribed testimony taken on February 23, 1939. An order of distribution was made on July 12, 1939, as amended July 17, 1939, in which the prothonotary, in the name of the court, was ordered to distribute the fund, of which $ 987 was to be given to Mayer Sniderman. Peter Quarture filed exceptions to this order and before Marshall, Smith, Kennedy, JJ., the exceptions were severally dismissed, Kennedy, J., dissenting. This appeal followed.

The power of attorney, copy of which appears in the record as Exhibit "A" attached to the answer, is apparently signed only by Mayer Sniderman. Appellee admits in his brief that the instrument was signed also by Quarture.

We cannot agree with the contention of appellee that the power of attorney is a purely unilateral legal instrument or that the client alone is obligated by its terms, or that it does not in fact bind or obligate the attorney to do anything. It is clearly a bilateral agreement under which the attorney agrees to perform certain services, and for these services he is to receive a certain percentage of the amount which may be recovered.

The function of the lower court, as well as of this court, is to ascertain the intention of the parties from the language of the contract which is unambiguous in character.

Under the terms of the power of attorney, Sniderman is constituted as attorney to "institute, conduct, superintend or prosecute to final determination, if necessary, a suit or suits, action or claim against the County of Allegheny on account of taking, injuring, and affecting (my, our) property in the relocation, widening, and opening of the State Highway, known as Route No. 545." (Italics supplied).

Pursuant to the power of attorney, the attorney prosecuted the claim of Quarture before the Board of Viewers of Allegheny County and received an award of $ 1,650. After the receiving of this award, the testimony shows that the attorney and client met and discussed the prosecution of an appeal and that the attorney viewed the successful prosecution of an appeal as uncertain and took the position that he would accept the award of the Board of Viewers and not take an appeal to the common pleas court unless the power of attorney aforesaid was cancelled and a new agreement was made between him and the client whereby he, as attorney, would receive, as his fee, a percentage of any recovery that might be made on the appeal, larger than the 10% provided for in the power of attorney.

The depositions taken on behalf of Mayer Sniderman, show that there was considerable discussion between the attorney and client with regard to this subject and that the final result thereof was that the power of attorney was cancelled or withdrawn by mutual agreement of the parties and that, before the taking of any appeal, a new agreement was made between the attorney and client whereby the attorney was to receive as his fees for the prosecution of the appeal, 33-1/3% of whatever recovery might be had.

After the making of this agreement, the attorney took and prosecuted an appeal to the court of common pleas and succeeded in securing a verdict of $ 2,961 in favor of the client.

When the question of the distribution of this verdict arose, the client insisted that the attorney was only entitled to 10% thereof, the percentage provided for in the original power of attorney. The attorney, on the other hand, claimed 33-1/3% of the verdict under the terms of the verbal agreement between him and the client made, as aforesaid, after the award of the Board of Viewers and before the taking of the appeal.

The court below held that the client was bound by the terms of the new verbal agreement which he made with the attorney, as aforesaid, and awarded the attorney, out of the verdict, a fee computed on the 33-1/3% basis.

Appellee contends that the parol evidence rule is not involved in this case, and that as stated in KoEune v. State Bank of Schuylkill Haven et al., 134 Pa.Super. 108, 4 A.2d 234, at p. 111: "It is always competent for the parties to a written contract to show by parol evidence a subsequent modification, change, waiver of a condition, or the substitution of a new contract: (citing cases)."

While we agree with this statement, nevertheless where a subsequent oral contract is depended on, to change the terms of a prior written contract, it must be clearly and positively shown. We quote from the opinion of Judge Parker of our court in Goldman v. National Refrigerator Co., Inc., 120 Pa.Super. 458, 182 A. 730, quoting from the opinion of Mr Justice Brown in the case of Phillips v. Amer. Cement Tile Mfg. Co., 220 Pa. 141, 69 A. 589, (pp. 145, 146): "'If the question was simply one of the substitution of a new parol agreement for a per diem compensation for the work called for in the written contract, the contention of the appellant as to the insufficiency of the evidence to...