Attrill v. Patterson

Irving, J. delivered the opinion of the Court. There are two appeals in this record which will be disposed of in one opinion. Abraham B. Patterson sued Henry Y. Attrill in the Baltimore City Court, and, by consent of parties, the case was transferred to the Court of Common Pleas. The declaration is. in the usual form upon the six money counts.

The following bill of particulars was filed, in response to a demand made by the defendant: “ Henry Y. Attrill to Abraham B. Patterson, Dr. ' “ To services rendered by the said Patterson, at the request of said Attrill, between the first of September, 1813, and the 9th of April, 1815, in aiding vto procure a compromise between the Crescent City Gas Light Company of the State of Louisiana, and the New Orleans Gas Light Company of the said State, which compromise resulted in an agreement of consolidation, or amalgamation between said two companies........................................$50,000.00.” The defendant pleaded never indebted, and did not promise as alleged. The plaintiff contends, that the bill of particulars, furnished on demand, becomes a part of the declaration, and makes this declaration contain a count upon a special contract. The bill of particulars does become a part of ²³⁹ the declaration; but, as furnished in this cause, it contains none of the elements of' precision and stipulation belonging to a special contract, or a count in a narr., setting one out. It can only he regarded, as its plain language imports, as a simple specification of the kind of service rendered for which compensation is sought, and the charge which the plaintiff makes therefor.

It does not set out in terms, nor by implication, that the sum charged was a sum agreed to be paid for the services designated. The amount charged is identical with the amount claimed in the declaration, before the bill of particulars was filed. As a part of the pleading therefore, we cannot regard it as setting up a special contract. , The appellee, Patterson, claims to have been employed by Attrill (the appellant) to aid in bringing about a compromise between two gas companies in the City of New Orleans, and to a proper understanding and appreciation of the questions presented, it is important to see what the subject of controversy, between the two companies, was. “The New Orleans Gas Light Company,” by virtue of a charter, granted by the Legislature of Louisiana in (1835) eighteen hundred and thirty-five, was supplying the City of New Orleans with gas. By its charter it possessed the exclusive privilege of making and vending gas, in the City of New Orleans, for a period of forty years, which would expire on the first day of April, 1815.

In 1860 an Act of the Legislature of Louisiana was passed, with the title of “An Act to extend the area of gas. lighting in the City of New Orleans, and to reduce the price now paid by consumers.” This Act contained a section extending the charter of the New Orleans Gas Light Company to the first day of April, 1895, but declaring its privileges should cease to be exclusive after the first day of April, 1815; which was the limit of its existence by its original charter. ²⁴⁰ In 1810 “The Orescent City Gas Light Company” was incorporated by the Louisiana Legislature; and in 1813 ■certain amendments were made, by the Legislature, in its charter. To this new company was granted the monopoly of making and vending gas, in the City of New Orleans, from, and after the first day of April, 1815. The Crescent City Gas Light Company claimed, that the Act of 1860, whereby the charter of the New Orleans Gas Light Company was granted an extension of their charter, for twenty years longer, with the privilege of making and vending gas, (though not exclusive' after-April 1st, 1815,) was unconstitutional and void, by reason of certain provisions in the Constitution of Louisiana respecting the form and contents of the title of Statutes. If this position of the Crescent Gas Light Company was correct, the New Orleans Gas Light Company would cease to have corporate existence on the first day of April, 1815; and from that day the “ Crescent City Gas Light Company” must supply the city with gas.

The New Orleans Gas Light Company was -fully equipped to afford the supply. If its existence ended on. the first day of April, 1815, the new company must put itself into condition to fulfil the requirements of its charter after that date. An immense, outlay was necessary which it was dangerous to encounter unless the claim to monopoly was assured by some judicial decision; whilst the other company had its mains, pipes and appliances all ■ ready and in constant use. It was desirable therefore, if possible, to settle these conflicting claims by purchase of the works of the old company by the new, or the sale by the new, to the old company, of their charter rights; or by some ‘kind of compromise which would end the controversy.

The defendant, Attrill, having acquired a decidedly controlling- interest in the stock of the “ Crescent City Gas Light Company,” in September, 1813, employed the plaintiff, Patterson, to go to New Orleans to negotiate for him, ²⁴¹ if possible, a compromise of these conflicting claims of the two companies. He went; and after remaining several months in fruitless endeavors to secure an amicable adjustment, his principal, Attrill, concluded to abandon efforts to compromise and to resort to regular legal proceedings. Attrill insists, that so soon as he resolved to test liis rights at Jaw through the Courts, Patterson’s connection with the matter ended; that having failed to accomplish what he was employed to do, Patterson was discharged, whilst Patterson contends that he was authorized to initiate the legal proceedings; that they were a part of his planning, and the result of his advice to his principal; that he was retained as agent in the matter after the legal proceedings were begun; and that Attrill could not discharge him without paying him tire compensation agreed upon in the event of a good compromise being effected; which he contends has been done by the amalgamation of the companies, after the suit terminated in Attrill’s favor. The legal proceedings resulted in the overthrow of the Hew Orleans Gas Light Company’s claim to extension of charter rights after the first day of April, 1875; and in the issuance of an order of Court restraining that company from any attempt after that date to exercise any of their former privileges; and inhibiting it from interfering with, or impeding in any way, the Crescent City Gas Light Company in the exercise of the exclusive privileges secured by their charter, after the first day of April, 1875.

This being a decision of the Supreme Court of the State, rendered February 1st, 1875, only two months before the How Orleans Gas Light Company would cease to have corporate existence, it put that company at the foot of the Crescent City Company, which, rather than construct, would prefer some arrangement by which the works, mains and pipes of the old company should continue to he used; whilst the old company would willingly and wisely sacrifice much to ²⁴² save anything for their stockholders, from their works,, which would otherwise be comparatively worthless. The outcome of it all was an amalgamation of the two companies on the 29th of March, 1875, under a general law of the State authorizing such consolidation, which was passed by the Legislature the December preceding; by which agreement the consolidated company retained the name of the “New Orleans Gas Light Company,” and all the franchises of the Crescent City Company were conferred upon it; and a certain amount of paid u|D stock of the newly organized company- was issued to Attrill, (the defendant,) as the representative of the stockholders in the Crescent City Company, in lieu of the stock of that company, the certificates of which were cancelled. Having given as concise a history of the origin of this-suit as we could, to make it perfectly intelligible, we must consider, to some extent, the proof with respect to the contract which we are to construe, and give effect to, according to the rules of law which we find applicable. And inasmuch as the appellee was entitled to have the jury consider his evidence of what the contract was, as the possible basis of their verdict, we shall assume for the purposes of this decision, that the conversation, in which the contract was made, and which, in fact, was the contract, was exactly what he represents it to be.

Awhile prior to the fifteenth of September, 1873, Patterson says, Attrill told him “he should want his services, and to hold himself in readiness; ” to which he rejalied “very well.” About the 15th or 20th of the same month, Patterson testifies that Attrill said to him he was “prepared to talk;” and to his inquiry “what is it?” Attrill replied, “It is a similar transaction to the one you carried through here.” I want you to go down to New Orleans to make a negotiation there; I have possessed myself of a majority of the stock of the Orescent Gas Company— ²⁴³ a large majority of the stock; that he had a monopoly charter for fifty years; that the old company’s charter would expire in 1875; but that they claimed an extension of twenty years.” To the inquiry “how he knew that they have not the right of extension,” Attrill replied “that he had the opinion of Mr. Wallis, Mr. Beverdy Johnson and others.” Patterson then asked “what he proposed to pay,” to which Attrill replied $25,000.00. Patterson replied “you don’t suppose 1 would leave my business in the 1 lands of a boy partner, and go to Sew Orleans and undertake a contingent negotiation for $25,000.00; it is perfectly ridiculous: why I got $50,000.00 for negotiating the sale of the old Gas Company’s stock; and then I was at home, and could attend to my other business while 1 was making the negotiation.” He then said, “Oh! this is a matter of no iiiLportanoe, you can fix it up in no time; the whole amomrt of it is, Duncan E. Kenner is dowiL there now, and really has the matter at a head.” To this Patterson replied, “that may or may not ho, hut large transactions are not fixed up 111 a few days; there is great uncertainty; nothing ma}” grow out of it; do you suppose I am going to jeopardize my life with yellow fever; I do not propose to go, and take these risks, and with probably no compensation.” The coiLversation was then broken off and no agreement was reached. In the course of the same day or the next day, in obedience to a message from Attrill, Patterson went to see him, and the conversation was renewed. Attrill said, “Patterson, I want you to go dowiL to Sew Orleans and manage this transaction; the fact of the matter is, I have committed myself to parties interested with me; 1 have told them you are the only man I would entrust with such a negotiation.” Patterson replied, “Attrill, I will not go for twenty-five thousand dollars.” Attrill said, “I want you to go, and if there is a good negotiation effected, you shall have what you got here, $50,000.00; when can you go? ” Patterson, ²⁴⁴ answered: “lam ready to go now—I will send up for my trunk.” Patterson was then told to come around to tea, and thejr would go over all the papers together, which, were connected with the business; and that letters of introduction would be prepared and be ready for him, and he should start the next day.

Patterson further testifies, that in this conversation Attrill said, “that he had employed Mr. Kenner, and that Mr. Kenner had really a large number of the stockholders (of the old company) committed to a compromise with this company; and that was the method by which they proposed to accomplish it.” Patterson inquired, “suppose they should not compromise under such circumstances?” Attrill answered, “we will drive them to the wall; we will test the unconstitutionality of their charter, and bring them to terms.” Pursuant to the invitation, Patterson went to AttrilTs that night, and was shown all the papers and all the publications that had taken place respecting the matter—Mr. Wallis’ opinion to the effect that the Act of the Legislature by which the New Orleans Gas Company’s charter was attempted to be extended for twenty years, was invalid. Being furnished with all these documents he went to New Orleans on his mission. In the course of his examination as a witness, Patterson was asked, by his own counsel, “if there was any limitation put upon the means he was to use, and if so, what? ” He replied there was no limitation; “I had full and plenary power to do anything and everything I saw proper.” But that is manifestly only the construction he chooses to put ■ on the contract; for he expressly says in reply to'a question from AttrilTs counsel, “if anything was said with reference to any proceedings, other than proceedings for compromise—legal proceedings—proceedings to coerce them?” “There was nothing said on that subject; because, he (meaning Attrill,) was so hopeful at that time, that he 'really took it for granted that Mr. ²⁴⁵ Kenner really liad brought things almost to a point of consummation.” Taking the contract upon which Patterson started for New Orleans, to be just what he has represented it to be, in the conversations which he has narrated, it is almost too plain for argument, that this contract 'contemplated nothing but negotiations, through which resort to legal proceedings were to be avoided. Negotiations and compromise exclude the idea of actual resort to. hostile litigation.

To compromise, is to adjust a dispute by mutual concession. To negotiate, means substantially the same thing; to effect something, or an effort to effect something by treaty or agreement. This is what lexicographers say; and it is the common sense, every-day understanding of such language. Men go to law only when they cannot come to a peaceful agreement as to their respective rights and claims as against each other.

To negotiate A compromise between these two companies, was what this contract contemplated Patterson was to effect, or aid in effecting; and if his skill in such matters, of which his employer seemed to have such full appreciation, accomplished or aided in accomplishing an advantageous—“a good compromise,” he was to have the sum stipulated for as compensation. Delay was a serious matter, if construction had to be undertaken ; or if a law suit must precede or accompany it. Hence, expedition was urged; and all through the correspondence, Patterson was entreated to effect the compromise as quickly as possible. That this construction is right, and was the understanding Patterson had of it at the time, is abundantly clear from what Patterson said at the time of making the contract, and what he said in his testimony.

He said in the conversation with Attrill, he would not go for twenty-five thousand, taking the risks, when “nothing might come of it,” and he get “no compensation.” Therefore, as “probably he would get no compensation,” he insists on double the ²⁴⁶ amount Attrill offered him, as the contingent compensation to he received. Attrill consented, and for that large sum, in the event of success, he undertook the negotiation. In his testimony, he says expressly, that “compromise was the main object in view; and that Attrill actually thought that Kenner had it nearly accomplished, and only needed Patterson’s help to accomplish it in no time.” The mode hy which such compromise was to be effected, as stated in the conversation, when he was employed by Mr. Attrill, was by some means to get the members of the old company, one by one, in favor of, and committed to a compromise. Kenner, was stated to have many already committed to it, and by Patterson’s address and diplomacy, a sufficient number, it was hoped, would be won over to the scheme, to make the effort a success.

It is beyond doubt that in this first employment, it was not contemplated or dreamed of that Patterson was to initiate or superintend litigation in the Courts, by which the claims of the Crescent City Company should be settled, if that should ultimately become necessary; and that he should reap the benefit of costly litigation, which would have to be conducted by lawyers. It is plain that Patterson was employed to avert the necessity of that resort. It was only in the event of absolute refusal to compromise that Attrill said to Patterson, “then we (meaning himself and ‘parties interested with him,’) will push them to the wall, &c.” He was especially averse to litigation, knowing as he did the uncertainty of the law, and fearing no doubt that after all, his counsel might be mistaken in their view of the strength of his position in the law; or dreading the immense expense, immediate and prospective, which the construction of new mains and appliances would involve ; and perhaps dreading the expense of litigation. Erom whatever cause it proceeded, that aversion was so great, that when brought face to face with litigation or abandonment of his interests in the new company; when all hope ²⁴⁷ of compromise was gone; Patterson says, lie “wilted,” and only Tby his persistent entreaties, advice—and almost coercion-—was lie brought to the assertion of his rights in the Courts.

With such testimony before us, it is impossible to believe, that the contract of employment, the words of which exclude the idea, could have intended to confer on Patterson such powers as lie claims under it. This statement of Patterson is of itself sufficient to demonstrate, that up to that time, Attrill had never authorized the employment of counsel, or the institution of any legal proceedings whatever, with any other view than by feint or menace to promote the attainment of the “main object”—compromise. The compromise which was desired and sought, was without doubt either the purchase of the old company out at a price such as was offered, or the sale of the stock of the Crescent City Company and its franchises, for a satisfactory amount. The new Company as we have seen, did not want to build if it could be avoided; npr did they want to buy except at their own price.

The compromise which was most coveted, was the sale of their stock and charter rights. That was finally done at the end of the litigation. Patterson admits that “negotiations failed; and it was the law suit which forced the compromise. Negotiations for a compromise really ended on the 17th of December, 187H, when the letter of Jackson, on behalf of the New Orleans Das Company, rejected the propositions of the Crescent City Company, and offensively characterized them.

It is true, that after that, Patterson, clinging to the hope of compromise not being impossible, endeavored unavailingly to keep the matter open on that line; hut, on the tenth of January, 1874, Attrill telegraphed Patterson he would positively “carry it no longer” on compromise measures. The suit, which was instituted after consultation with attorney G-ibson in St. Louis, was not begun until the 14th of February, 1874. From its institution to its sue ²⁴⁸ cessful termination, Patterson had been wholly ignored* bad been excluded from tbe counsels of tbe lawyers and those interested in tbe matter, and never participated again in any way. Before its institution, be bad been directed to close negotiations and to meet Attrill at St..

Louis. After tbe St. Louis trip, tbe consultation with Mr. Gribson, and bis employment as a lawyer to take necessary legal steps, Patterson was made to fully understand that bis services were no longer needed, and could avail nothing. In fact, be was discharged. He says be' was “pitched out." He complained to Attrill of bis exclusion from confidence and counsel, and told him “be understood bis case better than be did, and better than most of bis counsel." Attrill replied, that “the matter was in the bands of lawyers, and they did not need bis advice." Then and thus ended their intercourse.

Tbe suit instituted by Mr. Gribson and bis colleagues,, as has already been stated, resulted in sustaining tbe whole theory and claim of tbe Crescent City Company, and put tbe old gas company entirely at tbe mercy of tbe new one.. Under such circumstances tbe terms were easily arranged for tbe consolidation, or amalgamation of tbe companies, which was effected. This final agreement Patterson calls, “a compromise," to the benefit of which, as “a good compromise” be claims to be entitled, by tbe agreement;, being as be contends tbe result of bis advice and entreaty. As has already been said, this claim is based on tbe theory that be was authorized to proceed by litigation if necessary ; and 4hat if be was not clothed with such power in tbe start, bis powers were subsequently enlarged; and that after all be bad done in tbe matter be could not be discharged so as to deprive him of bis right to tbe agreed contingent fee.

There is some evidence in tbe record, in tbe letters of inquiry, (in November and afterwards,) concerning progress, when tbe negotiations did not prosper and promise immediate success, of authority to employ-counsel and institute some legal proceeding. ²⁴⁹ One “Wood,” a stockholder of the old company, was induced to take action in his name which came to naught. But manifestly, from all the proof, any demonstration then by Attrill or his company, of suit was only to make a show of proceeding by law, in order thereby, if possible, to promote a speedier agreement. It is conclusively shown in the testimony that Attrill never designed resorting to suit in his or his company's name really, until after consultation with Gibson. "Nor was he satisfied that such was advisable while hope of compromise remained; for after the 11th of December letter of Jackson reject- • ing the proposals of compromise, and breaking off the intercourse looking to it; viz., on the 25th of December, 1813, Attrill wrote to Patterson saying he was not sure it was best to bring any suit—that it “might widen the distance between us and prevent a compromise.” Here is evidence again, as late as the 25th of December, 1813, that compromise was the thing which was to be obtained, and hesitation on the part of Attrill to do anything which might have an effect contrary to what was hoped from it.

It is true, in this letter he afterwards gives Patterson authority to use his discretion about it; but it was still only with the view of helping him to the end and object of his mission—“compromise.” There is also in the record, evidence of communications from Attrill to Patterson after the 11th of December, 1813, and up to February, 1814, tending to prove Attrill was still retaining Patterson in his employment in some capacity; and