
    WILLIAM H. DICKINSON, Respondent, v. JOHN DEVLIN, Appellant.
    I. Contingent compensation measured by a proportionate part of the fruits resulting from the services to be compensated for.
    1. PERSONAL LIABILITY OF EMPLOYER, WHEN.
    1. When he actually receives the fruits.
    2. When one (other than the employer), acting under a power of attorney from the employer, given with the consent of the-employee, actually receives such fruits.
    
      (a) This, although such, person retains in his hands the-proportionate part of the fruits which was payable to the employee for his compensation, and does not pay it over to the employer or employee.
    3. ACTION TO ENFORCE PERSONAL LIABILITY.
    1. Complaint in.
    
      (a) A complaint, which sets out the original agreement for compensation, the performance of service under it, and that the fruits resulting from the services had been received by one whom the defendant, with the knowledge and consent of the plaintiff, has authorized to receive the same, and. that neither such person nor defendant has paid to plaintiff the proportionate part of such fruits payable to him, States a good, cause of action.
    
    Upon such a state of facts, the defendant had the-power and was bound to see that the person who received the money paid to the plaintiff his proportion thereof, or to demand it from such person and pay it himself.
    1. Surplusage.
    
      (a) Further allegations as to the disposition made by such person of the fund received by him, as to a demand made on him by the plaintiff for a part of the-fund, and a refusal by him to pay on the ground of a direction given to him by defendant not to pay,, as to a notification given to such person by defendant not to pay, and as to defendant’s claiming the whole fund, and denying the right of the plaintiff to any portion thereof, may all he treated as surplusage.
    
    1. Effect of so treating them.
    1. Under a general denial plaintiff is not put to proof of them.
    3. Under a general denial, an affirmative defense cannot be interposed.
    3. AFFIRMATIVE DEFENSES.
    1. Accord and satisfaction, agreement in nature of.
    
      (a) E. €1. An agreement between employer and employee, that the employee’s personal liability should be discharged by the transfer by the employer to the employee of the employer’s right to the fund in the third person’s-hands, to the extent of the employee’s proportionate part thereof, is an affirmative defense, and must be pleaded.
    2. Payment by stjch third person to the employee is an affirmative defense, and must be pleaded.
    Before Curtis, Ck. J., Sedgwick and Freedman, JJ.
    
      Decided June 18, 1880.
    The complaint alleged, in substance, that defendant employed plaintiff, an attorney-at-law, to sue for and collect a certain claim held by him against the United States government, upon a contingent fee of one-half of all sums thereafter recovered for, or paid back to, him, the defendant, his representatives or assigns, on account of the claim referred ; that under this agreement plaintiff rendered services and expended money, and through attorneys employed by him caused a suit to be brought in the court of claims, in which judgment was recovered against the United States for $10,000; that subsequently to the recovery of said judgment, and on December 31, 1877, the defendant authorized Charles D. Gilmore, in writing, as required by the regulations of the United States Treasury Department to collect the amount of the judgment from the United States, and pursuant to such authority the said sum of $10,000 was paid to said Gilmore on said day, in satisfaction of said judgment.
    The complaint then proceeded as follows :
    “That on said December 31, 1877, said Gilmore paid the defendant, John Devlin, $5,000 out of said $10,000 collected, and retained in his possession $5,000; that plaintiff has demanded of said Gilmore $2,500 of said $5,000 so retained by him, but said Gilmore refused to pay the same or any part thereof, alleging, as a reason, that said Devlin has notified and directed him not to pay any portion of said $5,000 so retained by him to this plaintiff; and plaintiff alleges and ■charges that defendant has so notified said Gilmore not to pay this plaintiff any portion of said money, .and that said Devlin claims the whole of said $5,000 so retained by said Gilmore, and denies the right of plaintiff to any portion thereof; that defendant is indebted to the plaintiff, upon this account, in the sum of $2,500 and interest, since December 31, 1877.”
    The answer was a general denial.
    The issues came on for trial before the court and jury, and the trial resulted in á verdict for the plaintiff for the full amount claimed, given under the direction of the court.
    From the judgment entered on the verdict, defendant appealed.
    The facts sufficiently appear in the opinion.
    
      A. H. Dailey, attorney, and of counsel, for appellant.
    
      Wm. H. Dickinson, attorney, in person, and S. Jones, of counsel, for respondent.
   By the Coubt.—Sedg-wiok,

In this case the learned j udge directed a verdict for- plaintiff. It cannot be doubted that the testimony, given by the defendant himself, showed without dispute that the plaintiff was entitled to receive for his services, alleged in the complaint,'. $2,500, the amount ha claimed. The only question on the facts was whether plaintiff’s claim was a personal indebtedness of the defendant or whether it was a claim to a fund held by one Gilmore. If it were the former, there was the further question whether the complaint alleged it, as the cause of action.

The facts were as follows : the defendant had employed, in a form not necessary to describe, the plaintiff, to collect a claim against the United States, and agreed, in consideration of plaintiff’s services, to give him “one-half of all sums which may be recovered for or paid to me, my representatives or assigns, on account of the claim referred to.” The plaintiff then employed certain attorneys in Washington to prosecute the claim before the court of claims. The prosecution was successful, and ended in a warrant being drawn in the treasury department for $10,000, to the order of the defendant. The warrant could not be obtained without special authority from defendant, and for this purpose-the defendant, with the knowledge, and consent of the plaintiff, gave a firm, a member of which was one of the attorneys employed by plaintiff, a power of attorney to receive and indorse the warrant and to-receive its amount. It would appear at this point, that tíre plaintiff, having agreed that his attorneys, should equally share with him his one half of the recovery, there was an agreement made in reference to-the distribution of the proceeds of the warrant. The-defendant testifies : “ Dickinson authorized me to give Gfilmore a power of attorney, on condition that I would sign an agreement to give said Dickinson $2,500. The power and the agreement were executed; Gfilmore went to the treasury department and came back with the money; I received as per agreement $5,000, $2,500-was for Dickinson and $2,500 for Gfilmore.” On this statement it is clear to me that the plaintiff’s right to payment had become perfect and that the defendant received the money, when Gfilmore, his personal representative, collected the warrant, and that it was a personal obligation by the defendant to pay the plaintiff. His legal relation to Gfilmore was such that he had the power and was bound to see that Gfilmore paid to the plaintiff, or to demand the money from Gfilmore and pay it himself. Of course it is perceived that the facts suggest that one way of discharging the personal obligation would be to make a competent agreement that such obligation should be discharged by a transfer to the plaintiff of his right to the fund in the hands of ■Gilmore, to the extent of $2,500. Such a discharge would be in the nature of an accord and satisfaction. But the facts do not show such an accord.

. The first agreement and the second agreement were that the defendant would pay and would give. It may . be true that their agreement was such, that the plaintiff, if he chose and was able, had the right to require that the amount due to him should be reserved out of the recovery, before payment to the defendant, but bis right was not gone if he allowed the defendant to receive the recovery. He could then assert the personal obligation to pay. If the facts showed such an accord and satisfaction, or, as the defendant’s counsel claimed, a payment actually by Gilmore to plaintiff, it was an affirmative defense, which must be pleaded to avail. The answer was, however, a general denial.

It stands in this way, then, that there was an agreement that the defendant should pay to plaintiff one-half of any recovery by defendant, and. the defendant did recover and receive$10,000. The defendant, before the receipt by him of this amount, by his attorney, Gilmore, recognized and acted upon a subordinate agreement that the plaintiff had made with the attorneys employed by him, and consented that they should be paid out of the amount to be collected by Gilmore, $2,50.0, and promised to give the plaintiff out of the same proceeds $2,500. This promise he has failed to keep, and there is no proof that the plaintiff ever agreed to look to Gilmore for the $2,500. The same state of facts shows that the first promise to pay one-half of the proceeds has been broken.

As to whether this cause of action was stated by the complaint, there would have been no doubt if the plaintiff had contented himself with pleading the first agreement, and not obscuring the matter with a further indefinite set of, allegations that, fortunately for him, did not set up a defense for the defendant, but was calculated to suggest that the first contract had been merged in a subsequent agreement. On the whole, the matters subsequently stated as to the manner in which Gilmore disposed of the money received upon the warrant should be rejected as surplusage.

The views above expressed cover the ground to • which the exceptions in the case extend, and there is no necessity of detailing those exceptions.

The judgment should be affirmed, with costs.

Curtis, Ch. J., and Freedman, J., concurred.  