
    MICHAEL NOONAN v. JOHN H. STRAHAN.
    
      "Written instruments.—Application of provisions.—As to its "being a question for the jury to pass on.
    
    Upon the assignment of a contract upon the performance of which the assignor would be entitled to receive a large sum of money, the assignee, a lawyer, made an agreement with the assignor, whereby the assignee was to be paid “ a fee of §3,500 in full payment and satisfaction for his services in all matters and questions which have arisen or may arise in relation to said contract.” After performance of this contract, as claimed by the parties to the action, an action was necessary to be brought to recover the money payable under it. The assignee in his capacity as a lawyer, conducted the suit for the plaintiff. The litigation was long and laborious, but was finally successful, and the defendant here (such assignee), received a large sum of money. After that litigation had been in progress a length of time, the plaintiff here wrote to the defendant here, to the effect that a certain specified sum was to bo by him (such defendant) retained, out of any judgment that might be recovered in that action, “ together with the sum of §10,000 counsel fee.” The question involved in this action is, whether the defendant is entitled to retain the two sums of §3,500, and §10,000; upon this, the plaintiff under the whole evidence asked to go to the jury as a question of fact, xvhich request was refused by the trial judge, he holding as matter of law,that defendant was entitled to both services. A verdict for defendant was directed.
    
      Held, error; that prima facie the services rendered in the action fell within and wrere covered by the first agreement; that it devolved on the defendant to show by circumstances outside of. the words of that contract, so that the jury would not be entitled to say to the contrary, that such services did not fall within that agreement; that he did not so show, but on the contrary there was testimony that would have supported a verdict for plaintiff.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
    
      Decided July 2, 1886.
    
      Plaintiff’s exception to a direction of verdict in.favor of defendant, ordered to be heard in first instance at general term.
    
      L. Laflin Kellogg, attorney and of counsel for plaintiff,
    argued I. If the question raised in this case as to the construction of the contracts upon the evidence produced, is to be determined by the court, the court has erred in directing a verdict for the defendant. It should have directed a verdict for the plaintiff. It is a well recognized- rule of law that prior contract is merged in and superseded by a subsequent contract upon the same subject, which, as the last act of the parties, must be held to contain and express their true meaning and intention (Stow v. Russell, 36 Ill. 18 ; Hargrave v. Conroy, 19 N. J. Eq. 281; Cheeseburgh v. N. Y. & Erie Railroad Co., 26 N. Y. 9). This rule prevails even when there is no intention expressed in the latter instrument that it is intended as a substitute of the first. Where one contract has been made between two persons, and at a subsequent period another contract having reference to the same subject-matter, but changing the relations of the first contract, is entered into, the last contract controls or rescinds the first, though there be no such effect expressed in the last contract (Reed v. McGraw, 5 Ohio, 330). It is well settled that in considering contracts the acts of the parties themselves leading to or done in reference thereto, and the facts in view of which it was made, may be considered (Slapenhust v. Wolf, 35 Super. Ct. 25 ; Knapp v. Warner, 57 N. Y. 668 ; Clark v. N. Y., L. & G. Co., 64 Ib. 33; Coyne v. Weaver, 84 Ib. 386 ; Stokes v. Recknagle, 38 Super. Ct. 368). Extrinsic evidence may show a new agreement substituted for the former which it sets aside (2 Pars. Contr. 554; Monroe v. Perkins, 9 Pick. 298; Goss v. Lord Nugent, 5 B. & Ad. 58 ; Jeffery v. Walker, 1 Stark. 267).
    II. It is well settled that when the meaning of a contract is'obscure and depends upon facts aliunde in connection with written language, that a mixed question of law and fact is presented for the jury (First National Bank Springfield v. Dana, 79 N. Y. 108 ; Pitney v. Glen’s Falls Ins. Co., 65 Ib. 6; De Lavallete v. Wendt, 75 Ib. 579 ; Glacius v. Black, 67 Ib. 563 ; Curbs v. Ayrauldt, 47 Ib. 73; Martin v. Cope, 28 Ib. 180 ; Gardiner v. Clark, 17 Barb. 551; Ebley v. U. S. Bank, 11 Wheat. 59 ; Jenys v. Sherwood, 8 Corns. 122 ; White v. Hoyt, 73 N. Y. 505 ; Law v. Townsend, 11 Gill [Md.] 407). If the testimony of the plaintiff to the effect that one contract was a substitute for the other was not sufficient upon which to direct a verdict, it should have been sent to the jury to pass upon its weight (Edward v. Western Union Telegraph Co., 45 N. Y. 549). The jury should have been allowed to pass upon the intention of the parties to these contracts. Of this they were deprived by the ruling of the court.
    
      Thomas Allison, attorney and of counsel for defendant.
   By the Court.

Sedgwick, Ch. J.

The action was for money received by defendant for plaintiff’s use. The plaintiff had made a contract with the city, from which, upon performance on his part, he would be entitled to receive a large sum of money. Circumstances which it is not necessary to detail, led the plaintiff to assign to the defendant all moneys to grow due to the plaintiff under the contract. Contemporaneously, an agreement was made between the parties. It recited the making of the assignment, and that it, although absolute on its face, was made only “in security.” And thereupon the agreement witnessed, that the purposes for which the assignment 'was made were as then followed : “ First, that out of the sums assigned as aforesaid, the said party of the second part,” the present defendant, “ is to be paid a fee of $3,500, in full payment and satisfaction for his services in all matters and questions which have arisen or may arise in relation to said contract.” Then were stated the other purposes. These are not material to this appeal. After this the defendant performed valuable services in relation to the contract.

The agreement was made in May, 1879, and the contract had not then nearly been performed.

After performance, as claimed by the parties to this suit, the city refused to pay the money that the contract provided should be paid by it. Various and complicated claims to the moneys due under the contract and the agreement that has been referred to had arisen. By consent of the parties interested, these claims were united in Thomas J. McKee, and by general consent an action was brought against the city for the recovery of the amount due under the contract. This action was begun in October, 1882. The plaintiffs therein were Mr. McKee and the present plaintiff. They appeared by the present defendant as their attorney. The issues were referred and the .testimony was taken through a laborious trial down to February 12, 1884. On that day the plaintiff here wrote to the present defendant a letter. It declared that under the assignment already recited in this opinion, the plaintiff acknowledged that the defendant had advanced to him $31,167.96, and that this amount, after the payment of certain claims, is to be retained by you out of any judgment recovered against the city on my said contract, together with the sum of $10,000 counsel fee.”

Judgment was obtained against the city, and a large portion of it paid to the present defendant. The claim in this action is that he has not paid to the plaintiff all that the latter is entitled to receive. The defendant claims to be entitled to retain the $3,500, provided for his fee under the first agreement. The plaintiff claims that this provision was extinguished by the arrangement made by the letter of February 12, 1884. The plaintiff does not dispute defendant’s right to retain, as he has the $10,000 fee provided by the letter.

On the trial, the learned judge held, that the defendant was entitled to retain both fees; that the latter was intended to be additional to the former. The plaintiff asked to go to the jury on the question of fact, of whether the services for which the $10,000 counsel fee was provided, were not part of the services for which the fee of $3,500 had been stipulated to be paid. If that were the case, the defendant could not justly claim to retain for services under one contract, when he had retained enough to pay him under the other.

The first consideration pertains to the inquiry, whether, on the face of the first contract it appears that such a service as the defendant rendered for the plaintiff in the action against the city, and for which in part the $10,000 fee was to be paid, was not contemplated by that contract. The description of the services to be rendered was “ services in all matters and questions which have arisen or may arise in relation to said contract.” There can be no doubt that the subsequent action against the city, was a matter relating to the contract, and the phrase “fee of $3,500,” has an intimation that the services intended were partly at least of a legal kind, which is customarily paid for by fees. Then, the defendant, to sustain his position, must resort to circumstances outside of the words of the contract, and show from them, so that a jury would not be entitled to say to the contrary that the intention of the parties did not regard services of the kind that the defendant rendered in the action. The testimony as to these circumstances was not so decisive of the question, that a jury could not find to the contrary. It is not to be said that a jury would not have been warranted in finding for the defendant on this point. But there was testimony which would have supported a verdict for plaintiff. Part of it may be adduced. The action was an appropriate means of accomplishing the purpose, for which on its face, the agreement had been made. After the agreement, and for about fifteen months while the action was pending, the defendant did not ask for any compensation from the plaintiff for the services in the action, or that any arrangement concerning it should be made. According to the plaintiff’s testimony which a jury must weigh, the defendant demanded the compensation of $10,000, because the sum of $3,500 was not sufficient or proper. From this, the jury would be called upon to say whether the defendant did not admit that the two sums referred in part at least to the same services.

In my opinion, the plaintiff should have been permitted, as he asked, to go to the jury, on the question of whether it was not intended by the first contract that the services by it to be rendered by the defendant, were not such as he afterwards rendered in the action against the city.

The plaintiff’s exception sustained, the verdict set aside, and a new trial ordered, with costs to abide the event.

Truax and O’Gorman, JJ., concurred.  