Shubert v. Rosenberger

• Decision Date: 04 March 1913
• Docket Number: 3,635.
• Citation: 204 F. 934
• Parties: SHUBERT et al. v. ROSENBERGER.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F. 934

SHUBERT et al. v. ROSENBERGER.

No. 3,635.

United States Court of Appeals, Eighth Circuit.

March 4, 1913

Frank Hagerman, of Kansas City, Mo. (Kimbrough Stone, of Kansas City, Mo., on the brief), for plaintiffs in error.

Clyde Taylor, of Kansas City, Mo. (A. N. Gossett, of Kansas City Mo., on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and WILLARD, District Judge.

HOOK Circuit Judge.

J. C Rosenberger, an attorney at law, sued Lee and Jacob Shubert for professional services and recovered judgment. By this writ of error the defendants complain only of rulings of the trial court in respect of their defense that a binding compromise and settlement was made before the action was begun.

After the dispute over the amount of the fee arose, the plaintiff and Jacob Shubert, one of the defendants, met in Chicago and agreed upon an adjustment. Shubert left for New York the same day, and plaintiff at once wrote him a letter, June 5, 1909 in which he said:

'Am writing this as a memorandum of our agreement of settlement of today. You to pay me now for my services in the Woodward case a balance of $5,000.00 of which $400.00 (exact amount $399.00) has already been received by me in the shape of court costs in Appellate Court and paid by Woodward, leaving net balance due me $4,600.00. * * * You to save me harmless on account of the claim heretofore asserted by Mr. Klein to 1/3 of my fees. This is, of course, in full of all services in the Woodward case if the litigation is ended in accordance with the releases and stipulations signed by you to-day which seems certain.'

The fee of another attorney was also involved, and was referred to in the letter, but it is not of importance in the present litigation. Shubert made no reply to the letter, but plaintiff having wired him, June 14th, that 'our understanding at Chicago was based on immediate cash,' he wired in reply that he had been out of the city; and on the 16th he wrote, inclosing a check for $2,500, and said:

'This is a bad time of the year to arrange for this sort of thing, as everything is closed up and all our rents are due. I will send you the balance very shortly. Please make collections of whatever you can from Woodward, and you can credit the amount to your account, also the $300 tied up in Omaha.' Plaintiff cashed the check and kept the money. On June 21st he wrote Shubert, acknowledging receipt of the $2,500, but said it was not accepted as in compliance with their agreement. He referred Shubert to his letter of the 5th and said the agreement was to pay 'now'; that he would not have agreed to accept $4,600 on any other condition than immediate payment; that he would extend the time of payment to July 1st, and if by that time defendants sent him the further sum of $2,100 (making the $4,600), and would also write him by return mail that he agreed to all the terms of the letter of June 5th, he might consider the matter settled; otherwise he (plaintiff) would look to him for the full value of his services. June 24th Shubert replied, saying plaintiff's letter of the 21st contained a glaring misstatement of the facts; that it was not understood at the interview of June 5th that the money was to be paid at once, but that money was to be collected from the litigation and credited on the account; also that the amount of the fee charged was outrageous and exorbitant, and that he would be more than pleased to let the matter go to the courts. Plaintiff then sued for the value of his services, less payments received, in which he included the $2,500 sent by Shubert's letter of the 16th of June. The verdict and judgment were for about $1,300 more than the amount agreed upon in Chicago, of which excess about $500 was for interest. As already indicated, the only defense with which we are concerned was that the claim had been settled, released, and discharged.

It became necessary at the trial to determine whether the Chicago agreement was still in force or, on the other hand had been broken or repudiated by defendants, and to do that it was necessary to know its terms. Counsel for defendants say the agreement was in a writing which spoke for itself, meaning plaintiff's letter of June 5th, and they complain that the court erred in instructing the jury that they might consider the conversations at the Chicago conference, of which evidence had been admitted. If the letter of June 5th were the agreed repository of the contract terms, then it is clear that defendants promised to pay the $4,600 'now.' Ordinarily 'now' means at the present point of time; at the present time; at this juncture. Century Dictionary; Chapman v. Holmes, 10 N.J.Law, 24, 31. In a writing it means contemporaneously with the making or execution. Chouteau v. Barlow, 110 U.S. 238, 262, 3 Sup.Ct. 620, 28 L.Ed. 132; Pike v. Kennedy, 15 Or. 420, 15 P. 637. In the present circumstances, both parties being away from home, turning time or grace was doubtless intended so Shubert might, upon his return to New York, remit by due course of mail. Counsel for defendants contend the word meant 'upon demand' at the most. But even that would not help them, because plaintiff's telegram and letter of June 14th and 21st were each equivalent to a demand, and Jacob Shubert's reply of the 24th was a refusal and repudiation. True the plaintiff demanded by his letter of June 21st something more than payment of the balance by the 1st of July, but if he was not entitled to it the excess did not justify defendants in refusing to pay what was due. Colby v. Reed, 99 U.S. 560, 25 L.Ed. 484. The letter was not in temperate, respectful terms, and standing alone may possibly, for that reason, have failed as a demand (...