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(180 Ky. 773) MACPHERSON v. BACON'S EXPR.*

(Court of Appeals of Kentucky. May 31, 1918.)

1. CONTRACTS Q:164 – CONSTRUCTION SEPARATE WRITINGS. Agreements in writing, executed at the same time between the same parties and relating to same subject-matter, make one contract, though contained in several instruments bearing different dates, and not contemporaneous in execution. 2. CONTRACTS @:346(6)—EVIDENCE (C-448– PAROL EVIDENCE—AMBIGUITY-ISSUES AND PRO OF-EXPLANATION OF CONTRACTS. Ambiguous and uncertain expressions in the written evidence of a contract may be explained by parol or written evidence, even in the absence of a plea of fraud or mistake. 3. ATTORNEY AND CLIENT 3:563 – CONTRACT OF EMPLOYMENT—CONSTRUCTION. A contract between a county and attorneys, whereby the attorneys were employed to defend the county in certain enumerated suits on county bonds and any other suits that might be brought against the county on account of bonds issued, was sufficiently broad to embrace any suit on the bonds, whether then pending or thereafter to be instituted. 4. ATTORNEY AND CLIENT ©:276(1) – CONTRACTS OF EMPLOYMENT – CONSTRUCTION – EFFECT OF DISSOLUTION OF LAW PARTNERSHIP. Where a law partnership was employed to defend certain suits for a county, a dissolution of the firm by the retirement of one partner did not relieve the retiring partner from his obligation, where the county had acquiesced in the continuance of performance under the contract by the remaining partner. 5. ATToRNEY AND CLIENT ©276(2)—EMPLOYMENT—DEATH OF LAW PARTNER—EFFECT. Where a law firm has been employed by a county to defend certain suits, the death of one partner did not terminate the contract, nor relieve the surviving partner from his duties thereunder. 6. ATTORNEY AND CLIENT ©:76(4) - CoNTRACT OF EMPLOYMENT—CONSTRUCTION.—AUTHORITY TO APPEAL. Where attorneys were employed by a county to defend enumerated suits on county bonds and any other suit that might be brought against the county thereon, the attorneys to receive a percentage on any amount of bonds which they may save to the county, or which may be controlled and settled by the decisions rendered in the enumerated cases, the authority of the attorneys under the contract did not terminate when a decision was rendered by the trial court, but continued on appeal. 7. ATTORNEY AND CLIENT ©151—CONTRACT OF EMPLOYMENT—COMPENSATION. Where, under a contract between a county and a law firm and two attorneys, the law firm was entitled to receive one-third of the contingent fee to be earned, the release by the county of one of the attorneys, and an assignment by him to the surviving member of the firm and to the remaining attorney of his interest under the contract, did not operate to change the ratio of compensation, so as to entitle the estate of the deceased member of the firm to share in one-half instead of one-third of the total fee; the assignment not being to the firm, but to the surviving member thereof.

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Byron Bacon’s executor against Ernest Macpherson. From a judgment for plaintiff, both parties appeal. Affirmed.

Ernest Macpherson and George A. Brent, both of Louisville, for appellant. H. H. Nettelroth and E. J. Bacon, both of Louisville, for appellee.

HURT, J. This suit is a kind of an aftermath of the litigation between the county of Green and the holders of its bonds which Were iSSued in aid Of the COnStruction of the

Cumberland & Ohio Railroad. The bonds

were attempted to be issued as a result of an election held in the county of Green in accordance With the act of the General Assembly, which incorporated the Cumberland & Ohio Railroad Company, upon the question whether the county court should make a subScription to the capital stock of the company in the sum of $250,000, to be paid for in the bonds of the county, which were to run 20 years, and bear interest at the rate of 6 per centum per annum. The entire $250,000 Of the bonds were issued, and thereafter Were sold, Some of them to residents of the State of Kentucky, and others to persons who were nonresidents. The county paid the Coupons representing the interest upon the bonds until the year 1877, when it became patent that the railroad company did not intend to carry out or perform the conditions upOn Which the SubScription to the Capital stock was voted and the bonds issued, and the county declined to further pay the coupOnS. Several Suits followed this declination in the federal courts, and resulted in judgments against the County upon a large number Of the coupons. On November 15, 1894, there was pending in the Green circuit court a suit by F. L. Sidebottom against the county of Green upon certain bonds with their attached coupons. At the Same time there was pending in the federal court for the district of Kentucky a suit instituted by John Thomas and Others against the County of Green to recover a judgment upon certain bonds with their attached coupons. The County’s defense to these actions upon the merits of the controversy Was the same in each case or in any other action that might be brought against the county to recover judgment upon any of the bonds or coupons. The defense Was that in the application to the county court for the order to hold the election, and in the Order of the court which Submitted the question to the voters of the county, and in the Orders, which subscribed for the stock, it was provided that the Subscription Was agreed to upon the condition that the railroad Should be COnStructed through the county and within one mile of Greensburg, and the amount of the bonds to be expended in the construction Within the county, and the bonds were not to be issued or paid by the county until it should be exonerated by the company from liability upon a former subscription made to the Elizabethtown & Tennessee Railroad Company, none of which conditions had been or ever Were performed by the Cumberland & Ohio Railroad Company. Hence a decision in either of the cases then pending or in any other Suit Which might be brought against the county upon any of the bonds upon the merits of the action Would determine the question of the county's liability upon all of the bonds. For the purpose of defending the actions Of SidebOttom and Thomas, and any other actions that might be thereafter brought against the county, on account of any of the bonds, and to have the question of the county’s liability upon the bonds determined on the above-mentioned date, a COn- tract WaS entered into betWeen the fiscal and county Courts upon the One side and the firm of Bacon & Macpherson, Col. John W. Lewis, and Judge D. T. TOWles, all Of Whom Were properly authorized attorneys at law, as the contracting parties upon the other side. This COntract WaS Set Out in the Order Which WaS made by the county and fiscal courts of Green county, and which is as follows: “On motion it is ordered by the court that Bacon & Macpherson, Col. John W. Lewis, and Judge D. T. Towles be and they are hereby employed to defend Green county in the suits of Sidebottom, against Green county, pending in the Green circuit court, and the suit of John Thomas et al. against Green county, pending in the Circuit Court of the United States, at Louisville, and any other suits that may be brought against Green county on account of the bonds issued in aid of the Cumberland & Ohio Railroad Company, under the following contract, to wit: This contract, made the 15th day of November, 1894, by and between the Green county and fiscal courts of the first part and D. T. Towles, John W. Lewis and Bacon & Macpherson of the second part, witnesseth: That whereas, there is now pending in the circuit court of Green county a certain Suit against

Q>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Green county wherein one Sidebottom is plain

tiff, and in the Circuit Court of the United States for the Sixth District of Kentucky a certain suit against Green county wherein one Thomas and others are plaintiffs, both of Said suits being brought on bonds and coupons alleged to have been issued by said county in aid of the Cumberland & Ohio Railroad Company so called; and whereas, said courts would regard as ruinous to said county the success of the plaintiffs in said causes; and whereas, the real questions presented in said causes involve a very large sum of money and affect and control the total liability of said county by reason of its issue of any and all bonds in aid of said road; and whereas, the said courts have adjudged it necessary to employ counsel to defend said suits: The said parties of the first part hereby employ and retain the second parties to defend said causes, and in consideration of their acceptance of said employment the said first parties agree and promise to pay the said second parties for their services as attorneys the sum of , $1,200, a fee certain, no matter how said cases may result, and further agree to pay said attorneys a sum equal to 5 per centum of any amount of said bonds -or any bonds issued by said Green county in aid of said railroad, which they may save said Green county or the first parties or as representatives or acting for said Green county in said duties or which may be controlled and settled by the decisions rendered in said causes or either of them, and second parties are to defend all suits that may be brought against said county on account of said bonds or coupons is

sued by said county in aid of said road. Witness the hands of the second parties and of the judge and of the justices of the peace of said Green county.” Bacon & Macpherson was a partnership between Byron Bacon, deceased, and the appellant, Ernest Macpherson, for a general practice of law, and by the terms of the partnership Bacon was to receive three-fifths and Macpherson two-fifths of the proceeds of the business of the partnership, and were to bear the expenses and losses in the Same pr0p0rtion. This partnership continued until the 3d day of June, 1897, when the contract of partnership Was dissolved by a COntract, which was upon that day entered into between Bacon and Macpherson, and Which, as appears from the written evidence of the Contract executed by them upon that day, WaS aS followS: “June 3, 1897. “Byron Bacon, Esq.—Esteemed Sir: My proposition in the matter of the firm of Bacon Macpherson is that the firm will stand dissolved on and by the 1st day of June, 1897, you to attend to all of the business of the firm, and that theretofore in which I was interested by special employment, which came by, through or from your clients, I giving you my prompt and practical thorough co-operation and assistance therein as you may require, you to adjust and receive the fees and account to me therefor as I may be entitled thereto under our partnership agreement and our agreement theretofore; I to attend to all business of the firm or that in which I had theretofore and in which you were interested, which came by, through or from my clients, including the Green county bond cases and the R. N. I. & B. B. R. Co. case, and adjust, collect and receive the fees and accounts therefor to you in like manner as above. Individual names of the firm are to be signed to all records where the partnership name has theretofore been signed. I forthwith to surrender up to you the office. “[Signed] Ernest Macpherson. “Col. Ernest Macpherson—Esteemed Sir: The above proposition is hereby accepted. “[Signed] Byron Bacon.” It should be stated in explanation of the references in the above writing to causes in which either of these parties was interested before the creation of the partnership that previous to that ume they occupied the same office, and gave assistance in cases in which either Of them Was engaged and desired the services of the other under contracts, which applied only to the particular case. The action of Sidebottom against Green county, which was mentioned in the contract of the attorneys with Green county, Was dismissed Without prejudice to a future action by the plaintiff in the suit. The case of Thomas and others against Green county, mentioned in the COntract and Which WaS pending in the federal Court Was decided by that court in favor of the county, but upon appeal to the Circuit Court of Appeals, the judgment Was reversed and the case decided adversely to the county. Hence in neither of these actions Was anything Saved to the county by the services of the contracting attorneys. Thereafter, in 1899, one Quinlan instituted a Suit in the federal court for the district against Green county to recover upOn certain of the bonds, and this case upon appeal to the federal Circuit Court of Appeals Was decided adversely to the county. Thereafter a dispute having arisen betWeen the contracting attorneys and the Green fiscal court as to the respective rights of the parties under the contract, an order Was made by the Green fiscal court directing Lewis and Macpherson to apply to the Supreme Court for writs of certiorari in both the cases of Quinlan against Green county and Thomas and others against Green county, the fiscal court undertaking to pay certain expenses and costs to Which the attorneys would be subjected, but the compensation to be received by them for their services to be governed by the terms of the contract of November 15, 1894. Upon the hearing upon the writs in the Supreme Court, the decision of the Circuit Court of Appeals with reference to the Thomas case was unchanged, but that in the case of Quinlan against Green county was modified so that there was saved to the county the Sum of $12,444.02 in Coupons. At the time the partnership of Bacon & Macpherson Was dissolved and the contract of dissolution entered into there was pending in the Green circuit court an action by one Shortell against Green county to recover a judgment upon certain of the bonds and coupons. His suit was instituted in 1895, but nothing appears to have been done in it until in March, 1898, When an anSWer WaS filed, which was signed by Macpherson, Lewis, and Towles as attorneys. The case was dismissed in the Green circuit court because of a want of prosecution of it by the plaintiff. Shortell appealed to the Court of Appeals, and secured a reversal of the judgment. Upon its return to the circuit court an amended answer was filed by Macpherson and Lewis, as attorneys, but a demurrer was Sustained to the anSWer, as amended, and a judgment rendered by the circuit court in favor of Shortell, adjudging him a recovery upon the bonds sued on. An appeal from the judgment was taken by the County to the ‘Court of Appeals, and upon this appeal the judgment was reversed; it being decided that the county was not liable for the payment of any of the bonds or coupons issued in aid of the construction of the railroad, and upon the case being remanded to the circuit court, the petition was dismissed, and thereafter all other suits pending by persons owning bonds and who resided within the state of Kentucky were dismissed. The result of this judgment was to save the county from the payment of any bonds which would have to be sued upon in the Courts of the commonwealth of Kentucky, and the result of the litigation in the federal courts was to adjudge the county liable for any bonds upon which suit would have to be brought in the federal courts, which were then subsisting

by limitation or other reason. Thereafter LeWis and Macpherson instituted an action in the Green circuit court against the county to recover of it the compensation claimed to be due them under the contract of NOWember 15, 1894, and the litigation resulted in the recovery of a judgment by them against the county for the sum of $28,230, with interest thereon from the 2d day of December, 1912. Byron Bacon died, testate, on the 1st day of April, 1900, and this action was instituted by the executor of his will to recover of appellant, Macpherson, three-fifths of the fees received by him for defending the Suits against Green county heretofore mentioned. It appearing that no part of the judgment recovered by him against Green county had been paid, 'the court adjudged that he should assign to the executor of his deceased partner three-fifths of one-third of the recovery in the judgment, and from that judgment he has appealed to this Court, While the executor of Bacon has prayed a cross-appeal, and insists that the court should have adjudged that the appellant transfer three-fifths of One-half Of the judgment against Green county to the executor, instead Of three-fifthS Of . One-third Of it. [1, 2] (a) Pending the negotiations between the members of the firm of Bacon & MacpherSon for a dissolution of the partnerships, a letter was written by Bacon to Macpherson, and two letters by Macpherson to Bacon. These Writings Were Set up by appellant, in his answer, as a part of the contract of disSolution, but the court sustained a motion to strike them from the answer, and of this appellant complains. True, agreements in Writing, executed at the same time between the Same parties and relating to the same Subject-matter, Will be COnsidered to make One contract for the purpose of determining the meaning of the parties, though the agreements are contained in several instruments, and though they do not bear the same date, nor be absolutely Contemporaneous in execution. Park’s Ex’r v. Cook, 3 Bush, 168; Smith v. Theobald, 86 Ky. 41, 5 S. W. 394, 9 Ky. Law Rep. 449; Honore V. Hutchings, 8 Bush, 687; C., N. O. & T. P. Ry. Co. v. Luke, 169 Ky. 560, 184 S. W. 1132; Early V. Douglass, 110 Ky. 813, 62 S. W. 860, 23 Ky. Law Rep. 298; Knott's Adm'r v. Hogan, 4 Metc. 100. The letters preceding the contract, in the instant case, however, do not contain any unqualified undertakings ' by either party. They merely Submit propositions by One party to the other, none of which were accepted by either. The negotiations were all merged in the final writing, which Was Subscribed by each of them, and which contains all the stipulations upon either side. In such states of case the rule above Stated does not apply. It is likeWise true that, as is contended, ambiguous and uncertain expressions in the Written evidence evidence, or as it seems by Written evidence, to the end that the true meaning of the contract may be ascertained, and such may be done in the absence of a plea of fraud or mistake. Crane V. Williamson, 111 Ky. 271, 63 S. W. 610, 975, 23 Ky. Law Rep. 689; Skaggs v. Simpson, 110 S. W. 251, 33 Ky. Law Rep. 410; Westinghouse, etc., v. Greenville, etc., 169 Ky. 280, 183 S. W. 901. The writings struck from the answer of appellant were not, however, excluded from the evidence, and an inspection of them fails to shed light upon any expression in the Written contract. The descriptive expression used in the COntract With reference to the matter in Controversy here was “business of the firm * * * which came by, through or from my clients, including the Green county bond CaSeS. * * *” There is no WOrd of description or designation, in either of the preceding letters, which would indicate that the parties contemplated any particular Green county bond case or intended to confine the “business Of the firm * * * which came by, through Or from my [appellant's] clients,” to any particular “Green county bond case,” but Would Seem to include all Green county bond cases in which the firm had received employment. Several other grounds of reversal are urged, Which Will be considered in their Order. 1. It is contended that the contract with the fiscal court, dated the 15th day of November, 1894, Was the Only employment Of Bacon & Macpherson, by Green county, and that Such contract did not employ the partnership in the Suits of Shortell against Green county and Quinlan against Green county, and that Such Were the Only Suits in the defense of which the liability to pay any bonds was avoided by the county, and the right to demand any compensation from the county being COntingent upon Saving the County from liability upon the bonds and coupons, the right to the fees Was not earned, in any Suit, embraced by the contract with Bacon & Macpherson, as the Quinlan Suit was not instituted until after the dissolution of the partnership, and, While the Shortell Suit was instituted during the partnership, neither of the partners knew of its pendency until after the dissolution. This Contention is not tenable, when it is considered that the order of the fiscal court recites that Bacon & MacpherSon, Col. John W. Lewis, and Judge D. T. Towles “be and are hereby employed to defend Green county,” not only in the Suits Of Sidebottom and Thomas against the county, but “and any other suits that may be brought against Green county on account Of the bonds issued in aid of the Cumberland & Ohio Railroad Company.” The contract further recites that the questions involved affect and control the entire {iability Of the County On account of the bonds, and further provisions are embraced in the contract, to the effect that Bacon

& Macpherson, Lewis, and Towles are to defend the county in all-suits which may be brought against it on account of the bonds. It is also provided that they are to receive a fee for their services, in addition to a retainer fee of $1,200 “5 per centum of any amount of said bonds or any bonds issued by said Green county in aid of said railroad, which they may save said Green county or the first parties [Green county and county: fiscal Courts] or as representatives Or acting for Said COunty in Said SuitS, Or Which may be controlled and settled by the decisions rendered in said causes or either of them. * *k *** [3] Hence the terms Of the contract Were sufficiently broad to embrace any suit brought for a recovery upon the bonds issued in aid Of the railroad, whether then pending or thereafter to be instituted, and the real object contemplated by the parties was to secure a decision of the question of the County's liability, which would affect and control its entire liability upon all the bonds, whether they had been Sued upon or not. This is the view which appellant took of the contract, aS he and LeWis filed an action in the Green circuit court for the recovery of their fees, and relied solely upon the contract with the county, of date November 15, 1894, as the basis of their right of recovery, and in such contention they were sustained by the circuit court, and the judgment in which was approved by this court in Green County v. Lewis et al., 157 Ky. 490, 163 S. W. 489. Hence it seems that the firm of Bacon & MacpherSOn Were employed in all the Suits which might be brought against the county on account of the bonds until a controlling decision Was had. [4] 2. It is insisted by appellant that Bacon's estate is not entitled to any portion of the fee, because Bacon withdrew from the cases when the partnership was dissolved, and rendered no further Services therein. This WOuld doubtless be a Sufficient answer from the county if Bacon had simply refused to perform his contract with the county withOut any justifying circumstance, and then Sought a recovery from it. So far as the county was concerned, the dissolution of the COntract of partnership did not relieve Bacon from the Covenants which the firm had made to the county as long as he lived, and the Contract of dissolution does not indicate that Bacon intended to abandon the contract With the county and fail to perform it, in the event that appellant failed to perform it. This defense could not avail appellant, because the county acquiesced in the appellant performing the contract for his firm, and appellant was doing SO under a contract With the partnership to the effect that he Would. perform the Obligations of the contract With reference to the “Green county bond cases,”, and would collect and pay to Bacon the portion of the fees to Which he Was entitled un-, der the partnership contract, in consideration of Bacon performing the partnership contract and previous contracts made by them individually with other parties, and Collecting and paying to appellant the portion of the fees to which he was entitled under the partnership contract and previous COntractS. [5] 3. It is also insisted that, before the fees due from Green county had been earned, Bacon died, and, the contract of employment as attorneys being a personal one, that the contract with the county thereby terminated, and that the Services rendered for the COunty, which represented the fee, a portion of which is sued for, was earned by the appellant under a later contract, with which neither the decedent, Bacon, nor the firm of Bacon & Macpherson, had any connection. Where it can be gathered from a contract that it was intended that a party Should personally perform a certain Covenant because of his skill or peculiar ability Or the peculiar confidence reposed in him by the other, the contract expires with the death of such party. Shultz v. Johnson, Adm’r, 5 B. Mon. 497. If a lawyer is contracted With to perform services in the line of his profession, which requires skill and knowledge ‘Of his business, there is no doubt that upon his death the contract terminates, as a personal representative, nor any one engaged by him, can be substituted for the deceased lawyer, whose personal services were contracted for. A somewhat different rule, however, applies where the services of a firm of lawyers are contracted for, although in McGill v. McGill, 2 Metc. 258, the general expressions made use of by the court, as to the respective duties and liabilities of a client and a partnership for the practice of law, one of whose members should die, would seem to indicate that the same rule applied to a partnership as with a single lawyer. The general trend of authority is to the effect that the death. Of One member of a partnership to practice the profession of law does not relieve the Surviving partner from performing a contract which the partnership had made, and as said in Green County v. Lewis et al., Supra: “When a party employs a firm of lawyers to represent him, and one of them dies, he is entitled to have the services of the Surviving member, and if he is not satisfied with the ability of the surviving member to manage his case or feels that he ought to have additional counsel to take the place of the deceased member of the

firm, he should make this request in seasonable time,” etc.

One who, however, engages a firm of lawyers is entitled to the personal services and skill and ability of both, and if one should die the client may terminate the contract, but will be required to pay the value of the services up to that time, as upon a quantum ~meruit, where such rule is applicable. Hence after the death of Bacon the COunty Of Green

services of appellant, if it desired or it could have declared the contract at an end, but When it agreed to or acquiesced, as it did, in the performance of the firm contract. by appellant, the contract did not end, and appellant having gone forward and performed the Services, and claimed and been adjudged a reCOVery of the fee under the contract with the firm, and because of such contract, long after the death of Bacon, cannot now be heard to say that the contract expired at the death of Bacon and before any fee was earned. Green County V. Lewis et al., supra; Cummings W. Consaul, 222 U. S. 262, 32 Sup. Ct. 83, 56 L. Ed. 192; Clifton v. Clark, 83 Miss. 446, 36 South. 251, 66 L. R. A. 821, 102 Am. St. Rep. 458, 1 Ann. Cas. 396. The appellant carried out the contract with the county, under a contract with Bacon that, when the fee Was reCOWered, Bacon Should have threefifths of it. [6] 4. It is also contended by appellant. that inasmuch as all the actions which ownerS Of the bonds and coupons brought against Green county were either decided against the county, or were dismissed without prejudice, or else dismissed by the court for some reason, neither of them affected or controlled the liability of the county, or saved the county from any liability, except the cases of Quinlan against Green county and Shortell against Green county, and that the first of the tWO latter cases was decided adversely to the county in the federal Circuit Court of Appeals, and the latter case was decided against the county in the circuit court of Green county; that the contingent fee, which is now the Subject of this action, was not earned by appellant under the COntract Of BaCOn & Macpherson with the fiscal court, as that contract ended With the adjudications above mentioned, and but for the appeal to this court in the Shortell case and the writ of . Certiorari in the Quinlan case there would have been no saving of the county from liability upon any of the bonds Or Coupons, and hence the contingent fee provided for under the contract With the fiscal COurt Was never earned by any One. True, at the Common law it was held that the authority of attorneys, who represented the parties in the original suit, if the authority was of the ordinary kind, was at an end when the first judgment was rendered, except that the attorney for the plaintiff had the right to enforce the judgment for a year and a day. Holbert V. Montgomery’s Heirs, 5 Dana, 11. It was held in Richardson v. Talbot, 2 Bibb, 382, that a scire facias and a writ of error to reverse a judgment, whether from the Same or a Superior COurt, had alWayS been deemed actions Which the attorneys obtaining the judgment could not prosecute withOut new authority, and in the later Case of Hey v. Simon, 93 S. W. 50, 29 Ky. Law Rep. 315, it was held by this court that, where

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