Salomon v. Webster

• Decision Date: 01 December 1878
• Citation: 4 Colo. 353
• Parties: SALOMON v. WEBSTER.
• Court: Colorado Supreme Court

4 Colo. 353

SALOMON v. WEBSTER.

Supreme Court of Colorado

December, 1878

Error to County Court of Arapahoe County.

ON the trial of this cause Ralph C. Webster, being duly sworn testified: 'My name is Ralph C. Webster, I am the plaintiff in this suit, and am acquainted with the defendant Salomon. Either in September or October, 1867, the defendant called on me and asked me to take charge of a claim which he had against the United States for corn delivered at Camp Filmore, on the Arkansas river, a little below Pueblo. The conversation was at his store in Denver. He explained the case to me, and said that certain action had been taken, and the claim rejected. Upon his representation of the claim I thought it could be collected. He told me if I collected it he would give me $1,000. He gave me the papers and memoranda relating to it, and within a few days I started to Washington. I got the claim referred to the inspector-general of the army, General Hardee, who reported it back adversely. I then got additional testimony in New York, and brought it before the broad of claims then sitting in Washington; the board decided it adversely.'

Counsel for the plaintiff asked the witness the following question 'Did you employ counsel to assist you in presenting the defendant's claim, and if so, upon what terms?' The defendant by his counsel objected, for the reason that the witness had shown no authority from defendant to employ counsel at his expense; but the court overruled the objection and permitted the witness to answer the question, which he did, as follows: 'I employed F. J. D. Fuller as my attorney to carry the claim through the United States supreme court, on appeal from the board of claims.' To which ruling and decision of the court in permitting this question to be asked and answered, the defendant by his counsel then and there excepted.

Thereupon the witness further testified: 'The defendant did not know of my employing Mr. Fuller by name, but knew I had employed an attorney, and that the attorney was to have $1,000 if he collected the claim. After I had been two or three months at Washington I wrote to Salomon that his claim was more than he reported it, that I would have to employ an attorney and pay him $1,000; that I had been to considerable expense, and wanted him to give me $500 to re-imburse me for that expense. I stated to him also that it would leave him $2,616.20 after deducting $1,000 to Fuller and $500 to me less some small expenses for taking two or three depositions. After writing this letter, and at the same time, I gave Mr Fuller a power of attorney containing a power of substitution, to prosecute the case in the court of claims and supreme court.'

Witness here handed a letter which is marked B by the court, and he resumed: 'This is a letter received by me from the defendant in reply to a letter written by me to Salomon. I went to Denver in the fall of 1869, met Salomon at his store and asked him if he had heard from the claim, as I was anxious to get my $500, and that $500 wouldn't pay my actual expenses, not including my trouble. He offered to sell the claim to me for $2,000. Mr. Salomon never said any thing about my $500 charge until after he got his claim collected. He then called me into his store and showed me his bill of expenses for over $400 in addition to Mr.

Fuller's charge of $1,000, and told me it would not leave me over $30, $40, or $50; I told him I had nothing to do with expenses, and he asked me to show him my paper to that effect; I showed him this letter 'B' and called his at tention to his offer to take $2,616.20 in full for his claim, and he replied that he did not know why he expressed himself in that way, and admitted that I never wrote him any such a proposition; Salomon has never paid me any thing, but offered to pay my account with Salomon Bros. of some $69 to settle the matter; Salomon got from Fuller over $3,000, some time in February or March, 1874.' Letter 'B' was then offered in evidence. To the introduction and reading of which in evidence, the defendant by his counsel objected, for the reason that it was immaterial, and contained no evidence of an agreement by the defendant to pay an additional $500 to the plaintiff for his services, and because it showed a counter proposition, not accepted by plaintiff, etc., but the court overruled the objection and permitted the letter to be read in evidence. The letter was read to the jury as follows:

DENVER, COL., Nov. 17, 1867.

COL. R. C. WEBSTER, DEADHAM.

Dear Sir-In reply to your favor of the 8th instant, I inclose you several indorsements which I presume will be sufficient. In regard to the moving of Camp Filmore, and the delivery of the corn, I cannot get any affidavits as all the parties military and civil, who were connected, left the Territory. In regard to the 25 per cent commission, I think it is very steep. When I offered you $1,000 I took it for granted you would have to pay something for influence, etc., and that you would not retain the full amount for your services. It is a great loss to me and I hate like the d___l to lose so much; but if you cannot do any better I will take the amount you offer, to wit, $2,616.20 in full for my claim, and as you have full power of attorney, settle the d___d thing. If you succeed in settling and get the money, place above amount to the credit of First National Bank of Denver, with Fourth National Bank of New York, and inform me by telegram as well as letter. Hoping soon to receive news of settlement, and wishing you a pleasant time, I am

Yours Truly,

FRED Z. SALOMON.

P. S. Make inquiries what steps would be necessary to get pay from the government for property destroyed by the red devils. There are many claims of that kind in this country, and if you had the inside track, it may be a good thing for you to take hold of them.

F. Z. S.'

On cross-examination this witness testified: 'I placed the claim in Fuller's hands in 1869, more than a year after I wrote the letter to which 'B' is an answer; I never paid Fuller any money for the suit; I received letter 'B' prior to placing the claim in Fuller's hands; I was to have $1,000 if I collected the claim, and nothing if I did not collect it; I had some correspondence with Salomon before placing claim with Fuller; wrote him first that I must have 50 per cent if collected, as I would have to pay an attorney $1,000, and must have an allowance for my expenses; I made the contract with Fuller to collect the claim for $1,000, Salomon to pay the expenses; my power of attorney from Salomon only authorized me to collect the debt; I returned to Colorado in the fall of 1869, and at several times fater my return, I inquired after the claim of Salomon and told him I was anxious about my $500, and he never objected to my claim for the $500, until after the claim was paid; he then called me into the store and informed me that it was allowed and showed me his bill of expenses; I don't think I ever accepted Salomon's proposition to take the $2,616.20 contained in letter 'B'; my letter to Salomon asking for an additional fee of $500, and this letter 'B,' which is the answer to it, represents the status of affairs between me and Salomon when I returned from Washington to Colorado. I may have said in my letter to Salomon, that 'it would leave him $2,616.20, less expenses,' but I meant that he was to pay the expenses. When Salomon showed me this bill of expenses he said it would not leave much coming to me, not more than $30 or $40. I told him I was to have $500, and had nothing to do with expenses; but Mr. Salomon claims that the agreement was that he was to have $2,616.20 for his claim and was to bear none of the expenses, and so the matter stands.'

Thereupon the plaintiff rested his cause.

The defendant was then sworn in his own behalf, and testified as follows:

'My name is Frederick Z. Salomon, and I am acquainted with the plaintiff since 1867, and am the defendant in this cause. Mr Webster was going to Washington in 1867 on other business, and knowing he was an old army officer, and thinking he might have influence enough in army quarters in Washington to collect this claim, I showed it to him and explained it, and told him if he would collect it I would give him $1,000, but that I would not go to any more expense about it, and would pay nothing if he did not succeed in collecting it. He accepted my offer, and took the papers and memoranda concerning the claim with him. I got several letters from him about the claim, and this letter 'B' is my answer to one of them. After the claim was settled, I paid no more attention to those letters, and they have been lost or burnt up. The substance of Mr. Webster's letter to which 'B' is a reply, was that he could do nothing with the claim, and had put it in the hands of an attorney; that he had been to some expense and wanted me to allow him more money. I was unwilling to make that kind of an arrangement and wrote Col. Webster this letter 'B,' in which I make him a proposition to take $2,616.20 net, in full for claim, leaving him all he could get over that amount, but he never answered this letter. Afterward I got a letter from Mr. Fuller, attorney in Washington, saying Webster had left the claim in his hands for collection, and requesting me to send him money to pay costs of taking an appeal, affidavits, depositions and such things; I then took it for granted that Webster had abandoned the claim and from that time I corresponded only with Fuller. After the claim was allowed, I had a conversation with Webster in my store, in which I told him I had got a letter from Fuller saying the claim was allowed, and then showed him a list of expenses incurred by me in prosecuting it, amounting to some...