
    Grapel et al. v. Hodges.
    
      (Supreme Court, General Term, First Department.
    
    June 19,1888.)
    1. Attorney and Client—Compensation—Share of Amount Collected.
    An agreement reciting that a firm, the holders of certain claims for damages by Confederate cruisers, have constituted plaintiff’s testator their true and lawful attorney, in their name and stead to ask for, demand, and receive and take all lawful means to collect said claims, and agreeing, in consideration of his services, that he, and his legal representatives or assigns, should be entitled to retain 25 per cent, of the amount collected, is not a power of attorney which would be revoked by the death of one of the donors, but is a personal agreement to pay, for the services to be rendered, a certain proportion of the amount to be recovered.
    2. Same—Death of Parties.
    Nor was the right of plaintiff’s testator to go on in the collection of the claims so as to obtain the compensation for his services affected by the subsequent death of the surviving member of the firm owning the claims.
    3. Same—Claims against the Government.
    Nor was the contract terminated by the disallowance of the claims by the Geneva tribunal, both parties having recognized it after that time and services having been performed under it, such services resulting in the ultimate allowance of the claim and the creation of the fund out of which plaintiff’s testator was to have been paid.
    4. Same—Court of Commissioners of Geneva Claims.
    Such an agreement is not void as conflicting with act Cong. June 23, 1874, c. 459, establishing the court of commissioners of Alabama claims, and providing in section 18 for the allowance by the court and the payment of compensation to attorneys and counselors for claimants, and declaring void all other liens or assignments for such services. Following Bachman v. Lawson, 3 Sup. Ct. Rep. 479.
    5. Same—Partnership.
    After having done considerable work under this agreement, plaintiffs’ testator employed an attorney to represent these and other claims before the court of commissioners of Alabama claims, agreeing to pay him a sum equal to 5 per cent, of whatever was due on them. Held, that this did not constitute the attorney a partner with plaintiff’s testator, so that, upon the death of the latter, his rights under the agreement with the claimants devolved on the former.1
    'As to what constitutes a partnership, see Railway Co. v. Johnson, (Tex.) 7 S. W. Rep. 838, and exhaustive note.
    Appeal from special term, Hew York county; George L. Ingraham, Justice.
    Claim presented by Phebe A. Grapel and Robert Brown, as administrators of Gerhard Henry Koop, deceased, to H. D. Carlile Hodges, administrator of Horace D. Carlile, deceased, which, by consent of the parties and the order of the surrogate, was referred to William S. Beaman for hearing and determination. The referee having reported in favor of the claimants, and the report having been confirmed by order of the special term, (George C. Barrett, justice,) with leave to move to vacate the judgment directed to be entered thereon, the defendant made such motion, and appeals from the order refusing to vacate the judgment, and denying a new trial. Exhibit A mentioned in the opinion is a copy of the agreement on which the claim in dispute was founded.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Thorndike D. Hodges, for appellant. Henry G. Atwater, for respondents.
   Van Brunt, P. J.

The appellant is the personal representative of Horace D. Carlile, deceased, the surviving partner of the firm of FT. D. Carlile & Son. A claim having been presented bv the plaintiffs, as administrators of G. H. Koop, deceased, against said estate, and disputed by the administrator under the statute, the claim was referred, and, the referee having reported in fav.or of the claim, and this report having been confirmed, judgment was thereupon entered. Upon a case made, a motion was made at special term for a new trial, and this motion was denied. On the 15th of February, 1872, the firm of 3ST. D. Carlile & Son entered into a certain agreement with G. H. Koop, deceased, reciting that whereas said Carlile & Son held certain claims arising out of the depredations committed by the so-called “Confederate” privateers, amounting to $19,124.67, they had made, constituted, and appointed G. Henry Koop their true and lawful attorney for them, and in their name, place, and stead, or in the name of said Hathaniel D. Carlile & Son, to ask, demand, and receive, and to take all lawful ways and means to collect, said claims, and thereby, for value received, and in consideration of valuable services rendered and to be rendered, they agreed that said Koop and his legal representatives or assigns should be entitled to and might retain 25 per cent, of the amount collected in money or government securities, or whatever should be received therefor in payment. The claims referred to constituted what are commonly known as “ war-premium claims. ” Thereafter said Koop used all proper means to present the claims to the government of the United States for such action as the government should deem proper, and by reason thereof the claims were among the claims presented by the United States to the tribunal of arbitration at Geneva. These claims were, however, rejected by that tribunal. N. D. Carlile, one of the firm of FT. D. Carlile & Son, died in the autumn of 1875, leaving the defendant’s intestate the sole surviving partner of the firm. Horace D. Carlile died in September, 1880. By act of congress, approved June 5, 1882, the court of commissioners of Alabama claims was re-established, and provision was made for the filing of so-called “ war-premium claims” in said court within six months from its organization, and for the hearing and decision of said claims, and for the payment of the judgments rendered thereon. On the 12th of July, 1882, Koop, who was not an attorney at law, made a contract with one Manning, a duly-admitted practitioner before the said court of commissioners of Alabama claims, for the presentation of certain claims, including the claims of said firm, before said court, agreeing thereby to pay to said Manning for his services a sum equal to 5 per cent, of whatever was due upon said claims. After the death of Horace D. Carlile, Koop duly tendered to the administratrix of the estate of the surviving partner of the firm the services of Manning to prepare, file, and prove the claim before the court, but the administratrix refused to accept such services, or to allow Koop to act in any way in the prosecution of the claim, and employed other counsel, who prepared the said claim for the administratrix, and thereafter presented the same, and thereupon recovered judgment against the United States. The referee further found that Koop performed each and all his agreements, so far as he was able to perform the same without the concurrence of the administratrix, which was refused to said Koop. In February, 1883, Koop died, leaving a last will and testament, which was duly proved, and letters testamentary were duly issued to John G. Koop, the executor named therein. John G. Koop died in September, 1883, and thereupon Phebé A. Grapel and Robert Brown were duly appointed administrators with the will annexed of said G. H. Koop. In September, 1884, Mehitable Carlile, the administratrix of Horace D. Carlile, died, and on December 16,1884, Ff. D. Carlile Hodges was appointed administrator de bonis non of the estate of said Horace D. Carlile, and was thereafter substituted as claimant before the court of commissioners of Alabama claims in the place of Mrs. Carlile, deceased, and to the said Hodges, as administrator, was paid the sum of $9,243.37, on the 6th of September, 1886, in .satisfaction of the judgment recovered on the claim filed by said MebitableD. Carlile. In July, 1885, Manning was disbarred from practicing in the court of commissioners of Alabama claims, and during the period in which he rendered services on behalf of said claim of Carlile & Son, Koop performed like .services for other parties holding similar claims. The referee found that the plaintiffs were entitled to recover for the breach of the contract the difference between what Koop would have been entitled to receive if he had performed the ■contract, and the cost to him of such performance.

One of the grounds upon which it is claimed that the referee erred seems to be based upon the claim that Koop and Manning were copartners in the transaction, and that the rights under the agreement, if any, with Carlile & .Son, which Koop had, devolved upon Manning, the survivor. It is apparent that this claim cannot be sustained, for the reason that it appears that Manning was employed by Koop as an agent for the conducting of this business. Under his contract or agreement with Carlile & Son he had the power to take all lawful ways and means to collect the claims mentioned, and the firm of CarJile & Son gave to Koop and to his legal representatives full power and authority to do any act whatever necessary to be done, as they might or could do. Koop, therefore, under this contract, had the right to employ such agents and persons as he saw fit and might think necessary in order to bring the conduct •of the business to a successful conclusion, and in the employment of Manning he was simply exercising this power, agreeing to pay him as compensation a •certain percentage of the claim. As well might it be said that Koop became ;a copartner with Carlile & Son, by reason of the agreement with him that he .should receive a percentage of the recovery, as that Manning became a co-partner with Koop by reason of the agreement with him. The next point which has been raised is that upon the death of 3ST. D. Carlile, in 1875, the power of attorney to Koop was revoked. "We have searched in vain through Exhibit A to find any power of attorney therein contained. There is a re•cital in Exhibit A that Carlile & Son had made, constituted, and appointed Koop their attorney, and then follows the agreement in reference to the compensation, and also in regard to certain powers which Koop was to have in the carrying out of the purposes for which the power of attorney had been ..given, and the agreement in question made. It is undoubtedly true that Carlile & Son were the owners of the claim, and that it was collected for their benefit. But there was also contained in that instrument and agreement upon the part of Carlile & Son that Koop, his legal representatives and assigns, .should be entitled to a certain interest in these proceeds, and that Koop, his legal representatives and assigns, should have full power and authority to do what was necessary to be done in and about the premises as fully to all intents and purposes as they could do. Here is an express agreement between Carlile & Son and Koop in reference to this matter, and that the claim upon •this fund was not to be restricted to Koop, but might also be represented by his legal representatives or assigns. If there ever was an interest conferred by a contract, there certainly was under this agreement. If authority was needed upon this point, the strong ease of Bachman v. Lawson, 109 U. S. 659, 3 Sup. Ct. Rep. 479, would remove all doubt. Under a contract precisely similar to this it was held that such a contract was a mere personal .agreement to pay for services a sum equal to a proportion of the amount which might be recovered. This was a contract which the supreme court held in •that case might be enforced, and that such an agreement was a valid and binding one. The mere fact that under the agreement no portion of the claim is •assigned to the agent in no manner affects the legal effect or scope of the contract. A firm who makes a contract with an attorney that he shall be paid a •certain percentage upon the profits realized from a certain adventure in no way assigns any interest therein, but still it is a contract which may be enforced. In a similar way Carlile & Son made an agreement with Koop that he should receive a certain percentage out of a certain fund when realized,, and the representatives of Koop have the right to enforce that claim against the representatives of Carlile. It is not necessary to discuss the question as-to whether this agreement is void because, previous to the act of congress,, the courts absolutely rejected all these claims, because that question has been-expressly decided in the case of Bachman v. Lawson, above referred to. It is further urged upon the part of the appellant that the power to collect and-, actual collection became impossible at the death.of the defendant’s intestate^ and that therefore the contract came to an end, because its mutuality no longer existed. We utterly fail- to see how, by the death of Carlile in 1875, any of their rights became in any way affected by such death. Koop, his representatives or assigns, had the right under the agreement to prosecute these claims-in order that they might obtain-the reward of their labors. It was agreed that, as a compensation for services rendered and to be rendered, this percentage should be paid; and after the rendition of services, and after entering upon-the employment which was to be paid in this way, the death of either of theCarliles in no way affected the right of Koop to go on and complete the contract,, and he cannot be ousted of his right. The case of Wylie v. Coxe, 15 How. 415, seems to be precisely in point, although it is claimed upon the part of the defendants that that case is not an authority because the contract with the-plaintiff was executed by the attorney while he was living, and of course his-subsequent death was immaterial. An examination of that case shows that, the court recognized the fact that'the attorney had the right to continue his services in the prosecution of the claim, and that the administrator of the deceased claimant had no power to annul the contract, if it had been made bonafide by the attorney, and the business had been efficiently prosecuted by him-The condition of the contract is precisely the same where the personal representative of one of the contracting parties refuses to allow him to continue in. the employment, and he has offered his services. This is all that he can do,, and by the refusal of his services the administrator certainly cannot deprive-him of his rights and thereby annul the contract. The objection is made that the contract was for the prosecution of certain claims, which were disallowed by the Geneva tribunal, and that therefore the contract was at an end. But subsequent to that time the contract was recognized by the parties. Kooprendered services, and the fund arose because of the steps which Koop had initiated, and it was out of these funds thus secured that it was understood he was to be paid for his services. It is immaterial whether the fund arose front! a legal claim, or whether it was a recognition of some claim upon the bounty of the government. It was a payment to the representatives of Carlile & Son-on account of these war premiums which they had advanced, and it was a collection of that claim, whether it was a claim to bounty or a claim founded upon right, and Koop was entitled to his share of the proceeds. Therefore-the question as to whether the claim had its foundation in legal right or not is entirely immaterial, as it was services in connection with this subject-matter which was intended to be compensated by the contract, and, they having: resulted in the collection of a considerable amount of money, there is certainly neither justice nor equity in attempting to defraud the agent out of the compensation which he has earned. The orders appealed from should be affirmed-

Brady and Daniels, JJ., concur.  