
    ALFRED HOSS vs. THOMAS WILSON ET AL.
    In Equity.
    No. 1701.
    I. The plaintiff entered into a contract by which he agreed to employ the defendants in the prosecution of a number of claims against the United States which he held as agent for other persons, and he was to have one-third and the defendants two-thirds of the fees. It was then stip ulated, “ that in the cases of T. J. Coyan, Nicholas Culliton, and P. Moran, the fees shall be equally divided between the parties hereto.” Held, that, as to the cases here specifically mentioned, the agreement was independent and not affected by the stipulation in relation to other cases.
    II. It is no defense to a bill charging defendants with having collected the claims specified in the agreement and praying for a discovery and an account, to setup that plaintiff had made false representations at the time of entering into the contract as to the amount and character of the other claims which he would probably procure, and that he had failed to obtain other cases for the defendants to prosecute.
    III. When a case involves both discovery and account, it is within the jurisdiction of a court of equity.
    STATEMENT OE THE CASE.
    The bill sets out an agreement in writing in which the plaintiff is party of the first part, and the defendants parties of the. second part, dated August 15, 1866, the material clauses of which are expressed as follows:
    
      “ That whereas the party of the first part is agent for a large number of persons having claims against the United States, with power to employ attorneys for the prosecution of said claims,- now the said party of the first part agrees to employ the said parties of the second part to prosecute and collect all the claims he now has or may hereafter have as agent for the claimants, and the said parties of the •second part agree to use their best energy and skill in the prosecution of said claims.
    
      “ And in consideration of the premises, the parties hereto agree that the party of the first part shall have one-third and the parties of the second part two-thirds of all fees that may be received for the prosecution of said claims, after deducting all expenses.
    “ It is, however, agreed that in the cases of T. J. Coyan, Nicholas Culliton, and P. Moran, now in the hands of the parties of the second part, the lees received shall be equally divided between the parties hereto, after deducting the expenses.
    “The party of the first part agrees to furnish, without delay, to the parties of the second part a list of all the cases he now has in his possession for prosecution.
    “It is understood that the claim of John Williams, of Knoxville, Term., now in the hands of the party of the first part, is one of the cases included in the terms of this agreement.
    “ The party of the first part, by this agreement, only binds himself to use all exertions to secure to the parties of the second part the necessary legal authority from the claimants to prosecute the claims herein mentioned, and not to employ other agents or attorneys for the purposes for which this agreement is made.”
    The bill avers that the claims of Coyan and Moran, specially mentioned in the agreement, have been collected, and prays an account of the receipts and expenses, and that defendants be required to pay the amount due the plaintiff by the terms of said contract.
    The answer of Thomas Wilson, who only was served, or has appeared, admits the residence, agreement, &c., and avers—
    “That the plaintiff failed entirely to deliver any such claims to the defendants, or to employ them, or to cause them to be employed by any such persons as he represented himself to be agent for, and this defendant avers that since the signing of said agreement no claim against the United States has come into the hands of the defendants, or either of them, through the plaintiff, or any exertion of his: and the defendant denies the right of the plaintiff to bring this action in a court of equity, and says he has a certain, speedy, and adequate remedy at law.”
    The answer also admits that all the fees in the two cases already mentioned have been collected by the defendants, and that $500 expenses had been incurred and paid, but sets up, by way of defense, “that the said agreement was made and entered into by the defendant upon the representations made by the plaintiff at and before the time of signing, that he was the agent for a large number of persons; that the amount of said claims was about $200,000, and that such representations, when made, were false and fraudulent, and made with intent to deceive and mislead defendants.”
    The answer further sets up “that the principal consideration of the agreement was that the plaintiff should use his best exertions, so that the defendants should be employed as attorneys for such persons as the plaintiff was agent for,” and avers that the plaintiff failed entirely to employ the defendants, or cause them to be ‘employed.
    Such was the case upon the bill and answer. A deposition on behalf of the complainant constituted the only proof upon the hearing, which is not necessary to be stated, as the case was decided upon the pleadings above.
    
      John D. McPherson for complainant:
    The bill sets out a contract between the appellant and appellee, by which the appellant bound himself to pay to the. appellee one-half of the fees which he should realize from, certain claims of persons therein named which the appelleehad placed in his hands for collection, less the expenses incurred and the bill avers that two of said claims had been collected, and prays an account of the receipts and expenses. , This is the sole ground on which the suit proceeds, but of this not a word appears on the defendants’ abstract. The defendants’ answer admits the contract as stated, admits the receipt of the fees, and states the amount of expenses; but of all this not one word appears in the abstract.
    But the bill, in stating the agreement, states a fact which concerns future operations contemplated by the parties as well as that part which promises the plaintiff pay for what he had done, and this part of the bill is all that the plaintiff refers to in his “abstract.” To the averments in regard to this part of the contract, and his denial of performance on the part of the plaintiff, he confines his abstract exclusively.
    Now, this part of the bill contained nothing necessary to the plaintiff’s case; his equity was not founded on it; and it was stated only as a part of the writing on which the claim was prosecuted.
    The agreement contains two distinct parts: First, as to claims already placed by plaintiff in defendants’hands; and, second, as to claims the plaintiff was thereafter to furnish. As to the first class, he had done all he was to do; it remained only for the defendants to do their part. As to the second class, the plaintiff was yet to take the first steps, i. e., to secure them.
    These two stipulations were entirely independent. They related to different claims, each having no possible connection with the other. Every claim brought its own profits and its own expenses. It was just as if the plaintiff had delivered <oae hundred barrels of flour at a fixed price, and promised to deliver one thousand bushels of wheat at a different price. And the defense is, that, as he did not deliver the wheat, he cannot recover for the flour.
    Such an agreement makes a separable contract, not an entire one. “If the part to be performed by one party consists of several distinct and separate items, and the price to be paid is apportioned to each item to be performed, or is left to be iirqdied by law, such a contract will generally be held to be separable.” Parsons on Contracts, pt. 2, ch. 1, sec. 4, and cases cited.
    This being so, and the defendants admitting the whole case of the plaintiff as to the fees in the Coyan and Moran claims, the plaintiff is entitled to recover for those cases.
    
      Thomas Wilson, in person, and Enoch Totten of counsel for defendants:
    Where a bill is filed basing the right of action upon a contract made between the parties, and it avers performance on the part of the plaintiff, and the answer joins issue on this, and says he “failed entirely ” to perform that which he was bound by his contract to perform, in such a case the burden of proof is upon the plaintiff, and he must prove his case or fail.
    This is such an elementary proposition of pleading and practice, that I can hardly he required to cite authorities in support of it, but they can be found, if necessary.
    The decree appealed from, is in conflict with the proposition above laid down. The proposition seems to me to be so plain,, that I can only account for the decree as having been passed by a misapprehension. It is true the answer charges that the representations made by the plaintiff were fraudulent, and that his promises, as set forth in the agreement, were-false promises, and that he could not, and never intended to,, perform them when- he made them. But this makes no difference. The answer charges positively he did not keep or-perform these promises. I have yet to know that the defense of non-performance of the promises made in a contract will be obviated or set aside because it is added that the man lied when he made the promises, and never intended to keep-them.
   Mr. Justice Wylie

delivered the opinion of the court:

This case presents but little calling for particular notice at the hands of the court.

Defendants were attorneys practicing before the Court of' Claims, and entered into a contract with the plaintiff, by which they agreed to divide with him the net proceeds of the-cases which he should procure for them, after deducting all expenses attending their prosecution. It was stipulated, on his part, that he would exert himself to obtain claims which the defendants should prosecute.

There were four cases, however, specially named in the contract, which the plaintiff had already procured. One of' these was prosecuted by the defendants to a successful result,, and all the fees were collected by the defendants. About $500 were expended in procuring evidence, and otherwise in preparing the case for trial. Defendants then paid the-plaintiff $500; but refused to pay him any more, on the ground, as they allege, that he had made false representations-to them as to the amount and character of the other claims which he had undertaken to secure for the common benefit and this is the sole ground of defense on the merits.

We think that, as to the four cases already procured by the plaintiff and specially mentioned in the contract, the defense ought not to be sustained. As to them, the agreement was, in itself, independent, and not to be affected by the stipulations in relation to other cases or other business which was thereafter to be sought for or secured by the plaintiff.. Admitting that the plaintiff had made misrepresentations as to the amount of business he promised to procure in the future, the falsehoods were innocent of any damage to the defendants, for they parted with no money and expended no-labor upon their faith in them.

The payment of the $500 on account of the claim in question, though absurdly enough called in the answer a “ bonne bouche was a clear acknowledgment of the validity of plaintiff’s claim to a share of the fee in this case by itself.

The only point of the least difficulty in this case is that of jurisdiction$ but that was determined at a previous term of the court in favor of the plaintiff, on the ground that the casenvolved both discovery and account, and is not now open, to question, and we think was properly so decided.

The decree at special term is affirmed.  