cient consideration and can be enforced Thereafter, and in October, 1903, Schmidt reagainst him, although he might be able to tained one Levy, a lawyer, to negotiate with prove that nothing was in fact due from the defendant for a satisfaction and surhim." It is true that in that case the agree render of this agreement. The negotiations ment was in writing, but the strict rule as continued until the 23d day of November, as to accord without satisfaction in the case when the defendant told Levy that he would of a conceded debt obtains where the agree pay $2,500 to Schmidt and $250 to Levy for his ment is in writing. Kromer v. Heim, supra. counsel fees, in settlement and for a release

The ground, therefore, on which the deci of the contract in question. This offer was sions in the Webrum and Dunham Cases pro reported to Schmidt and his attorney was ceeded, is that there may be a valid executory authorized to accept it, who thereupon aragreement to compromise a disputed claim, ranged to have the matter settled at his office which, though unexecuted, is binding on the on the 25th day of November, at 3 o'clock in parties and determines their rights. The dis the afternoon. At that time the defendant tinction between the two classes of cases is appeared at Levy's office with two checks, well illustrated in Flegal v. Hoover, 156 Pa. one for $2,500 and the other for $250, ready 276, 27 Atl. 162. There the Supreme Court to carry out the settlement of the claim; but of Pennyslvania said: “This case was un Schmidt did not appear or furnish a release fortunately tried on a wrong basis through of the defendant from his aforesaid agreeout. It was assumed that the agreement of ment. Prior to this the defendant had enMay, 1892, was an accord, and as its terms

tered into negotiations for a sale of the had not been fully carried out, that there premises to Wanamaker, and such negotiahad been no satisfaction, that the agreement tions had proceeded to such an extent that was, therefore, inoperative, and the parties the terms had been agreed upon and dupliwere remitted to their rights and liabilities cate contracts drawn, which were signed under the original contract. This was a by the defendant on the 24th day of Novemradical error. The agreement of May, 1892, ber and then transmitted to Wanamaker, who was a compromise of disputed rights. The signed them on the 25th and returned to defendants claimed that the plaintiff was the defendant his copy about a quarter past violating the contract in such manner as to 3 in the afternoon, within a few minutes entitle them to rescind, and they had in fact after the failure of Schmidt to appear and taken possession of the land a short time close the transaction on his part. before by force. The plaintiff, on the other The question presented upon this review hand, claimed that he was pursuing his con is as to whether the negotiations for a settletract rights, and he had in turn ousted the

ment that had taken place between plaintiff defendants by force from the land. The and the defendant had ripened into a comparties then came together, agreed upon a pleted contract, so that a novation had taken settlement, put its terms in writing, which place and the new contract substituted for was signed by both, and partly carried out. the old, or whether the negotiations had proSuch an agreement is not an accord, but a

ceeded to the extent only that their minds compromise, and is as binding as any other had met upon the terms with the undercontract." The agreement in the present standing that the settlement by the payment case was not tentative, but specific and final.

of the money and the delivery of the release The defendant agreed to pay, and the plain was to take place on a future day; in other tiff agreed to receive, a specific sum at a words, that there was an accord executory specified time and place. Had the defend without satisfaction. I think the undisputed ant defaulted in the performance of his evidence in this case, even adopting the most agreement, the plaintiff's assignor could have favorable view that can be taken thereof for sued on his promise, regardless of the merits the defendant, brings it within the latter rule of the claim under the original contract. of an accord executory-a meeting of the Equally the defendant may hold the plain minds of the parties upon the terms, with tiff's assignor to the agreement.

the satisfaction or payment postponed until The order of the Appellate Division should a future time. The defendant had offered be reversed, the plaintiff's exceptions over Schmidt $2,500 for his claim under the conruled, and judgment directed to be entered tract. Schmidt had said that he would acon the directed verdict at the Trial Term, cept it, and the defendant was to pay over with costs to the appellant in both courts. the $2,500, and Schmidt was to execute and

deliver a release of his claim on the WednesHAIGHT, J. (dissenting). The defendant day following, at the hour designated. The had purchased through H. Schmidt, the plain payment of the money and the delivery of tiff's assignor, certain premises on Broadway the release were to be concurrent acts. The and Lafayette Place, in the city of New York, satisfaction, therefore, was executory. It which he was endeavoring to sell. Growing was postponed until the future. There had out of such purchase the parties had entered been simply an accord of their minds upon into a written agreement, which, so far as the terms of the settlement. It was, thereis material herein, provided that the defend fore, an uncompleted contract, one which ant agreed to pay Schmidt $8,600 upon the could not be enforced by action or substituted consummation of the resale of the premises. for the existing contract. The rights of the par

ties herein cannot be stated more forcibly by Under the provision of the contract the me than to quote from Justice Barrett in the whole of the $8,600 became due and payable case of Panzerbeiter v. Waydell, 21 Hun, 161. from the defendant to Schmidt upon the conIn that case one of the parties had made a summation of the resale of the premises. claim against the other and action had been This took place within a few minutes after brought thereon. Negotiations were then un 3 o'clock of the day that was fixed for the dertaken for a settlement and the terms had settlement between the defendant and been agreed upon, but the payment of the Schmidt. It is quite possible that the declaim and the execution of the release and fendant had reason to believe that this sale the discontinuance of the action were to be would be effected when he made his offer made on a future day. The learned justice to compromise with Schmidt. Schmidt was says with reference thereto: "There was no not advised of the fact that negotiations for acceptance of the discontinuance and release, a sale were pending between the defendant nor were they even left with the defend and Wanamaker. But, in view of the findants or their attorneys. There was, in fact, ings in this case, I incline to the view that no intention to surrender these documents no question of law arises with reference to without concurrent payment.

This this branch of the case which we can conis a plain case of an accord executory; such sider upon this review. an agreement would have been no bar to the I favor an affirmance of the order of the original suit unless executed by the accept- Appellate Division. ance of the $150. * * * The promise to discontinue and release was not binding upon EDWARD T. BARTLETT, WERNER, and the plaintiff. Consequently the defendants

HISCOCK, JJ., concur with CULLEN, C. J. were without a consideration for their prom GRAY, J., concurs with HAIGHT, J. ise. In the case of mutual and concurrent

O'BRIEN, J., absent.
promises there must be reciprocity of obliga-
tion.” Mitchell v. Hawley, 4 Denio, 414, 47

Ordered accordingly.
Am. Dec. 260; Russell v. Lytle, 6 Wend. 391,
22 Am. Dec. 537; Daniels v. Hallenbeck, 19
Wend. 408; Tilton v. Alcott, 16 Barb. 598;

(185 N. Y. 520) Day v. Roth, 18 N. Y. 448; Kromer v. Heim,

MOREHOUSE V. BROOKLYN HEIGHTS 75 N. Y. 574, 31 Am. Rep. 491; Brennan v.

R. CO. et al. Ostrander, 50 N. Y. Super. Ct. 426; Noe v.

(Court of Appeals of New York. June 21, Christie, 51 N. Y. 270; Osborn v. Robbins,

1906.) 37 Barb. 481.

1. SUBROGATION-DEFENSE BY SURETY-UNI do not understand the learned Chief

CONSCIONABLE CONTRACT. Judge to question the rule I here invoke. Plaintiff, an attorney, agreed to prosecute He, however, contends, if I understand his

an action for N. against defendant for 50 per

cent. of any recovery. With notice of plainopinion correctly, that the claim existing be

tiff's lien for said 50 per cent., but in good faith, tween Schmidt and the defendant was an defendant paid to N. the amount for which unmatured claim, and for that reason the settlement had been made, on the understanding

that N. would settle with plaintiff for his parties had the right to agree upon the com

services. Held, in an action to enforce the promise of it, and that it was not subject attorney's lien, that, defendant having by the to the rule that, where a payment of a por payment to N. become in effect surety for the tion of an undisputed claim had been made

payment to plaintiff for his services, the

defense that the contract between plaintiff and receipt given therefor in full, it did not

and his client was unconscionable, and therefore conclude the party from recovering the bal void, was available to defendant by way of subance due, as stated in the case of Ryan v. rogation. Ward, 48 N. Y. 204, 8 Am. Rep. 539. I quite

[Ed. Note.-For cases in point, see vol. 44,

Cent. Dig. Subrogation, $$ 96–105.] agree to this. I concede that the parties

2. ATTORNEY AND CLIENT—COMPENSATIONmay agree to surrender and compromise an

DIVISION OF RECOVERY. unmatured claim. They may also agree to Whether an agreement that an attorney compromise and settle a disputed claim. shall have 50 per cent of any recovery for What I do not agree to is that a different prosecuting an action is unconscionable, and rule obtains with reference to the settlement

therefore void, depends on the circumstances of

each case. of a disputed claim from that of an un

[Ed. Note.—For cases in point, see vol. 5, matured claim. Where the minds meet upon Cent. Dig. Attorney and Client, $ 351.] the terms of a settlement of a disputed claim 3. TRIAL-NECESSITY OF FINDINGS—MISTRIAL. and the delivery of the release, and the

Where, in an action in which the defense, payment is postponed to a future date, it

available to defendant, that a contract was

unconscionable, and therefore void, is interis but an accord executory, and not a com

posed, and evidence bearing thereon is produced, plete settlement or agreement, for the reason failure to find thereon, the court merely that no consideration passes between the refusing to make findings for defendant, results

in a mistrial; Code Civ. Proc. § 1022, requirparties at the time. It is but a mutual under

ing that the decision state separately the standing as to terms, but a failure to com facts and the conclusions of law and direct the plete by satisfaction. The same is true with judgment to be entered thereon, and refusal reference to the settlement of an unmatured

to find the fact for defendant not being equiva

lent to a finding against the fact. claim. Hearn v. Kiehl, 38 Pa. 147, 80 Am.

[Ed. Note.--For cases in point, see vol. 46, Dec. 472.

Cent. Dig. Trial, $$ 940–945.]


Appeal from Supreme Court, Appellate in which he stated that the claim of the deDivision, Second Department.

fendant that the contract was unconscionaAction by Wilmot L. Morehouse against ble, and would not, therefore, be enforred by the Brooklyn Heights Railroad Company and the court, was not available to the defendant another. From a judgment of the Appellate railroad company, for the reason that, if the Division (92 N. Y. Supp. 1134, 102 App. Div. company still had the $2,000 in its posses627), unanimously affirming a judgment (89 sion, it could not raise such a question, as it N. Y. Supp. 332) entered on a decision for would be a matter between the attorney and plaintiff, defendant company appeals. Re client only, and he did not think the company versed, and new trial granted.

was in any better position after having paid Charles L. Woody and George D. Yeomans,

the money in its own wrong. Exceptions for appellant. Wilmot L. Morehouse, pro se.

were taken to the findings of fact and conclu

sions of law of the trial court, and to its reHAIGHT, J. This action was brought to

fusals to find as requested.

I think the defense interposed by the recover of the defendant Jonas Nathan for services rendered to him by the plaintiff as

defendant company was available to it, and

that it should have been determined either an attorney at law in the commencement of an action for Nathan against the Brooklyn

one way or the other by the trial court. It

is true the defendant company paid out its Heights Railroad Company, and to enforce plaintiff's lien against the railroad company.

$2,000 in settlement of the action brought On the 19th day of February, 1902, the

against it; but this, as the trial justice has dafendant Nathan received personal inju

found, was honestly done, and consequently ries on the defendant's railroad while a

was not for the purpose of defrauding the passenger in one of its cars, and there

plaintiff out of his compensation. It is true upon he entered into

that this payment was made after notice of written agree

the lien had been served by the plaintiff upon ment with the plaintiff to prosecute an action therefor, for which he agreed to pay

the company. How the company came to

make the payment after such notice is not the plaintiff 50 per cent. of whatever might be

disclosed by the record. Whether it was recovered in the action, by way of settlement or otherwise, together with the costs, allow

overlooked or forgotten, we are not advised. ances, and disbursements thereon as compen

The company, however, has honestly settled sation for his services. Shortly thereafter

the case and paid the money to Nathan, as the plaintiff did bring an action against the

it had the right to do, upon the understand

ing that he would settle with his attorney railroad company by the service of a sum

for the services he had received. Fischermons and complaint, which action was subsequently settled by the defendant Nathan;

Hansen v. Brooklyn H. R. R. Co., 173 N. Y. the railroad company paying to him the sum

492, 60 N. E. 395. Nathan thereby became of $2,000. The trial court has found as a

primarily liable to pay the plaintiff herein fact that the settlement so made by the rail

for his services in the litigation, and the deroad company was honest and binding upon

fendant company only became liable to pay the plaintiff, but that the plaintiff at the

in case collection through execution against time of serving the summons and complaint

Nathan could not be made. In effect it behad also served upon the railroad company

came his surety. Such is the judgment ena notice of his lien for 50 per cent. Judg

tered herein. It therefore appears to me that ment was thereupon awarded against the de the defendant company became subrogated fendant for the sum of $1,000, with the pro

to the rights of the defendant Nathan, and vision that execution first issue against the had the right to avail itself of any defense to defendant Nathan, and, if it should be re

the action that Nathan had. In the case of turned unsatisfied, then the plaintiff have Pease v. Egan, 131 N. Y. 262–272, 30 N. E. execution against the defendant railroad com

102, Peckham, J.,

J., in commenting upon pany. The defense interposed by the rail the general rule of subrogation, refers to a road company was that the contract between statement of Chief Justice Marshall to the Nathan and the plaintiff was unconscionable, effect "that equity would clothe the party and therefore illegal and void. Most of the thus paying with the legal garb with which evidence taken upon the trial bore upon this the contract he has discharged was invested, issue. At the conclusion of the evidence the and it would substitute the party paying to trial court rendered a decision in writing, every equitable interest and purpose, in the containing findings of fact and conclusions of place of the creditor whose debt he has dislaw, to which reference has already been charged.” And again, later on, after refermade, but containing no 'finding either way ring to the cases of Gans v. Thieme, 93 N. Y. upon the question as to whether the contract 225, and Arnold v. Green, 116 N. Y. 566, 23 was unconscionable and illegal and void. N. E. 1, says with reference to them that The defendant had submitted requests to they are "evidences of the rule that no confind bearing upon this issue, to the effect that tract need subsist upon which to base the the contract was unconscionable, which re right of subrogation, and that it is a remedy quests were marked "Refused.” In disposing which equity seizes upon in order to accomof the case the trial judge filed his opinion, plish what is just and fair between the par

ties." In Mathews V. Aikin, 1 N. Y. 595, Johnson, J., says: "It is a general and well-established principle of equity that a surety, or a party who stands in the situation of a surety, is entitled to be subrogated to all the rights and remedies of the creditor whose debt he is compelled to pay." Hinckley v. Kreitz, 58 N. Y. 583; Johnson v. Zink, 51 N. Y. 333; Lord v. Tiffany, 98 N. Y. 412, 50 Am. Rep. 689; Wheeler V. Sweet, 137 N. Y. 433, 33 N. E. 483.

Of late years the subject of attorneys' fees and their manner of procuring contracts of retainer, especially in negligence cases, have attracted the attention of both the public and the courts. The charges made in some cases have been exorbitant, if not scanda lous, and have tended in a measure to bring the profession into disrepute. It is contended that a claimant who is poor and unable to pay his attorney in cash ought to be permitted to contract to pay a portion of his claim to his attorney, in order to procure his services. The validity of such contracts is not questioned. It is only where the attorney has taken advantage of the claimant, by reason of his poverty or the surrounding circumstances, to extort an unreasonable and unconscionable proportion of such claim that it is condemned. The federal courts have recently, in two instances, characterized a contract of retainer giving to the attorney 50 per cent. of the recovery as unconscionable. Herman v. Met. St. Ry. Co. (C. C.) 121 Fed. 184; Muller v. Kelly, 125 Fed. 213, 60 C. C. A. 170. The Appellate Division in the First Department has also denounced such contracts. The

contracts. The question, however, as to whether such a contract is unconscionable, is one of fact, depending upon the character of the claim and the amount of services to be rendered in prosecuting it to judgment. An agreement to pay an attorney one-half of the recovery, where the action was to recover a penalty of $50, would not by any person be considered to be improper; but, if it was for $50,000, it might be considered quite improper. So that the mere fact that the attorney under the agreement was to receive one-half does not render it unconscionable, unless it appears from the evidence that it was induced by fraud, or, in view of the nature of the claim, that the compensation provided for was so excessive to evince a purpose the part of the attorney to obtain an improper or undue advantage over his client. Matter of Fitzsimons, 174 N. Y. 15, 66 N. E. 554. 'As we have seen, the defendant in the case under consideration interposed the defense that the contract in this case was unconscionable, and therefore void, and evidence was produced upon the trial bearing upon this defense. The defendant company, therefore, had the right to have that issue determined by the trial court. This, as we have seen, the trial judge refused to do, for the reason,

as he states in his opinion, that the defense was not available to it. It is suggested, however, that the opinion cannot be considered in determining the effect that should be given to the refusal to find the defendant's requests, and that the refusal should be construed as a determination on the part of the trial court of the issues so presented for its decision. While we require the opinions written to be printed and made a part of the record, they do not form a part of the judgment roll. We do not, therefore, look to the opinions for the purpose of determining the contents of an order, finding, or judgment, or its meaning. We only examine the opinions for the purpose of ascertaining the arguments made and the reasons given in support of the ruings and determinations made by the court whose order or judgment is under review. Salmon v. Gedney, 75 N. Y. 479-481; Tilton v. Beecher, 59 N. Y. 176-182, 17 Am. Rep. 337; Fisher v. Gould, 81 N. Y. 228; Dibble v. Dimick, 143 N. Y. 549–551, 38 N. E. 724; Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051.

Under the practice as it existed prior to 1894, a party could submit to the trial court, or referee, requests to find, and the court or referee was empowered to mark upon the margin his determination as to each request. This he either filed or returned to the attorney presenting the request, and such attorney might file an exception to any refusal to find as requested and present the same for review before an appellate tribunal. But the provision of section 1023 of the Code of Civil Procedure authorizing this practice was repealed in the year stated, and was not re-enacted to take effect until September 1, 1904. So that in the meantime there was no provision of the Code authorizing requests to find, or requiring the court to pass thereon, or of allowing parties to take exceptions to refusals as requested. The requests to find in this case were presented during this interval, and it consequently follows that the court was not required to make any of the findings requested. But it is said that the trial court did pass upon the requests by refusing them. Very true, he marked them all “Refused.” Why he refused them he did not state. He properly could have refused them for the reason that the requests were not authorized by the Code, and the rulings made thereon had no force or effect, inasmuch as they were not subject to an exception or to a review on appeal. But, assume that the provisions of section 1023 of the Code had been re-enacted and were in force, and that an exception could be taken to the rulings made upon request. and that such exception could be reviewed on appeal; even then a refusal to find a fact requested is not equivalent to an affirmative finding to the contrary. If it were, a judgment might be based upon a decision made up wholly of refusals, thus completely



CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HISCOCK, and CHASE, JJ., concur. GRAY, J., absent.

Judgment reversed, etc,

nullifying the plain provisions of section 1022 of the Code, which require that the decision must state separately the facts and the conclusions of law and direct the judgment to be entered thereon. A judgment, therefore, must be based upon facts found, not facts refused. This precise question was considered by this court in the case of Galle v. Tode, 148 N. Y. 270-277, 42 N. E. 673. The opinion is as follows: “It is contended on behalf of the respondents that the defendants Levi and Materne were parties and privies to the fraudulent intent of Tode and Wulling. There is, however, no direct finding to that effect. A finding was requested that the defendants Levi and Materne had no knowledge of the intent of Tode and Wulling to defraud their creditors and the request was refused. But the refusal to find a fact is not tantamount to a finding against a fact, unless the intention of the court to be so understood is clearly apparent. The refusal to find may rest upon other considerations. The evidence may not be regarded as satisfactory either for or against, or the mere fact may not be regarded as material in the determination of the controversy." In the case of Meyer v. Amidon, 45 N. Y. 169– 171, the action was founded upon fraud and deceit. The referee had found that the representations made by the defendant were false, that the plaintiffs were induced thereby to give credit, and that damages ensued therefrom. He did not find that the representations were fraudulent, nor that the defendant believed or had reason to believe when he made them that they were false, nor that he assumed or intended to carry the impression that he had actual knowledge of their truth. He did not find that the defendant had any intent to deceive or defraud the plaintiffs. The defendant requested the referee to find that the representations were made without fraud. The referee refused so to find, otherwise than as contained in his findings of fact. It was held that the findings did not establish a cause of action against the defendant, nor sustain the conclusions of law found by the referee; that the refusal of the referee to find that the representations were made without fraud and without intent to deceive would not be equivalent to a finding that they were made with fraud and intent to deceive. See, also, Lawrenceville Cement Co. v. Parker, 39 N. Y, St. Rep. 864, 15 N. Y. Supp. 577. I am, therefore, of the opinion that the failure of the trial court to find upon the issue so raised by the pleadings and the evidence given upon the trial resulted in a mistrial. Miller v. N. Y. & North Shore Ry. Co., 183 N. Y. 123, 75 N. E. 111; Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302, 76 N. E. 4.

The judgment should be reversed, and a new trial granted, with costs to abide the event

(167 Ind. 553) DONALDSON et al. v. STATE ex rel. TAY.

LOR, Atty., Gen., et al. (No. 19,798.) 1 (Supreme Court of Indiana June 8, 1906.) 1. DOMICILE PRESUMPTIONS PRESUMPTIONS OF FACT.

The presumptions that a man is domiciled where he is found unless he is shown to be there for a temporary purpose, and that on the return of an alien to his domicile of origin, his original domicile reverts, and that in doubtful cases the original domicile is considered the true one, are not presumptions of law, but presumptions of fact only.

[Ed. Note.For cases in point, see vol. 17, Cent. Dig. Domicile, $ 36.] 2. TRIAL-FINDINGS OF COURT-FAILURE TO FIND ON PARTICULAR QUESTIONS-EFFECT.

Where a special finding is silent on a material point, it is deemed to be found against the one having the burden of proof.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 945.] 3. DOMICILE-EVIDENCE-PRESUMPTIONS.

Where, in an action to recover as escheated property land of which an alien died seised, the court found that the alien, a native of Scotland, emigrated to the United States in 1861 and became and remained a bona fide resident thereof until 1896, when he returned to Scotland, where he remained until his death two years later, and that it was not known whether he intended to return to the United States on his returning to Scotland, the court could not presume as a fact that he was a resident of Scotland at the time of his death, so as to deprive his alien heirs from claiming interest in the land. 4. APPEAL-REVIEW THEORY OF CASE IN TRIAL COURT.

Where an action to recover as escheated property land of which an alien died seised was tried on the theory that it was necessary to prove, in order to recover, that the owner was, at the time of his death, a nonresident of the United States, it could not be urged on appeal that the state was entitled to recover without proof of that fact, as the theory on which a case is tried must be adhered to on appeal.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, $$ 1053–1061.]

On petition for

for rehearing. Rehearing granted, and judgment reversed, with instructions to grant a new trial.

For former opinion, see 67 N. E. 1029.

MONKS, J. This action was brought by the state against appellants and others to have certain real estate in Lawrence county adjudged the property of the state on the ground that the same had been escheated to the state; said defendants claiming to own said real estate as the heirs of George Donaldson, deceased. The court made a special finding of facts and stated conclusions of law thereon, upon which judgment was rendered in favor of the state. 1 Rehearing denied.

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