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Charles O. Gates, Appellant, v. William M. Dudgeon, Respondent.

instant in reference to the Dudgeon meadow and beach at Peacock's Point received. We shall be pleased to have you confer with our Mr. Hershfield on the subject generally, at your convenience." Thereupon, and under date of May 23d, 1901, Mr. Tappan inclosed a form of deed with the following letter: "H. Hershfield, Esq., 141 Broadway, New York. Dear Sir-I enclose for your examination a draft of the proposed deed from Mr. William M. Dudgeon to Mr. Gates' representative, which I have drawn, as I am familiar with the description and locality of the premises. Very truly yours, (Signed) J. B. C. Tappan." And underneath the signature the following: "I think you may find my draft useful in some way. We can close any time on short notice. J. B. C. T." Here the matter appears to have rested until the third day of June, at which time the plaintiff himself wrote the following letter to the defendant: "Lawyers are, as we well know, proverbially slow, and it does seem quite impossible for me to get any reply to my letter of May 23d, accepting your proposition regarding the sale of the three-acre piece of beach at Glen Cove. I am quite sure if you knew how much this delay hinders me in carrying out some plans, you would see to it that the proper papers were signed at once. I should be pleased to see you, if necessary, and go over the matter, though I suppose everything is practically settled excepting the mere formal part of it. If you think it well to talk it over, I shall be glad to make an appointment with you any day by telephone to this office, where I am most of the day. I trust that the sickness in your family has all departed, and that you and your good wife are quite recovered from the anxiety incident upon such serious illness. With kind regards to Mrs. Dudgeon and yourself, I am Very Sincerely Yours, (Signed) C. O. Gates." To this the defendant answered, under date of June 4, 1901: "Your letter of the 3d inst. is at hand. After a full consideration of the matter, I have come to the con

Charles O. Gates, Appellant, v. William M. Dudgeon, Respondent.

clusion not to sell the property for some time to come. You will appreciate the fact that I am acting in the matter in a representative capacity, having but a fractional interest of my own therein, and that I have not the sole voice therefore.

"I trust you have not been greatly inconvenienced by any delay in obtaining this, my final answer.

"Our little one is well on the road to recovery and Mrs. Dudgeon joins me in thanking you for kind inquiries, and with our best wishes, I am Yours Very Truly, (Signed) Wm. M. Dudgeon. Mr. C. O. Gates, 100 William street, New York."

The trial court has found that these letters constituted a complete and valid contract. The learned Appellate Division appears to have reached a different conclusion. It is undoubtedly true that the courts must take into consideration all of the correspondence upon the subject in determining the question as to whether the minds of the parties had met upon the essential terms of the contract. The first letter of the plaintiff, under date of May 3, 1901, contains a specific offer on the part of the plaintiff to pay $3,000 cash on the delivery of a deed of the property without warranty. It expresses the wish of the plaintiff to take the title in the name of one Edward R. Finch. The answer of the defendant, through his attorneys, calls attention to the title of the property and then concludes to the effect that if Mr. Gates is satisfied to take such a title "Mr. Dudgeon is ready to give him the usual trustee deed without warranty." This letter was written in answer to that of the plaintiff. No objection is made to the expressed wish of Mr. Gates that the title be taken in the name of Finch. If, therefore, this was an essential feature of the contract, we think that the defendant acquiesced in the request. It is true that the purchase price was not mentioned in this letter. It was, however, stated in the preceding letter, and the answer indicates that if the plaintiff is willing to accept such a title as

Charles O. Gates, Appellant, v. William M. Dudgeon, Respondent.

the defendant has to convey, the defendant is willing to give it to him, and we think the letter clearly implies for the consideration named in the previous letter. The question, however, at this point was left open, as to whether the plaintiff was willing to accept the title, and to this he, through his attorney, replies on May 6 that "Your letter states the matter just as Mr. Gates and I understand it, and the terms therein stated are the terms which Mr. Gates wished me to accept on his behalf." Here we have a full acceptance of the terms on behalf of the plaintiff, and it appears to us that it concluded a completed contract in all of its essential details, and from that time became binding upon the parties. We have looked into the correspondence which followed, but find nothing that indicates that the minds of the parties had not met upon the propositions under consideration at the time that the letter of May 6 was sent until the final letter of the defendant under date of June 4, in which he declines to sell or convey the property, and, therefore, are of the opinion that the conclusions reached by the trial court were correct.

The order of the Appellate Division should be reversed, and judgment of the trial court affirmed, with costs to the plaintiff in this court and the Appellate Division.


Order reversed, etc.

Carl Fischer-Hansen, Aplt., v. B'klyn Hgts. R.R. Co., Resp.



§ 66.

Attorney's Lien-Secret Settlement Between Parties.

An agreement between attorney and client by which the former, in consideration of professional services and disbursements in prosecuting an action, is to have one-half of the recovery, followed by notice thereof to the defendant, gives to the attorney a lien upon the claim which cannot be defeated by a secret settlement between the parties before trial. While such lien does not prevent the parties from making an honest settlement between themselves, yet it attaches to the amount they agree upon the instant the agreement is made; and if the defendant pays over the whole amount to the plaintiff, disregarding the lien, he may still be held liable in an action by the attorney to account to him for his share of that amount. (Code of Civ. Pro., sec. 66.) (Decided February, 1903.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department affirming a final judgment sustaining a demurrer to the complaint.

It is alleged in the complaint, in substance, that on the 5th of January, 1900, the plaintiff, an attorney and counselor at law, was retained by the defendant, Louis Olsen, to commence and prosecute an action against the Brooklyn Heights Railroad Company to recover $50,000 damages for personal injuries received by said Olsen through the negligence of said company, whereby he lost his right leg. A written agreement was entered into between Olsen and the plaintiff

Carl Fischer-Hansen, Aplt., v. B’klyn Hgts. R.R. Co., Resp.

whereby the former agreed that the latter, in consideration of his professional services to be rendered and the disbursements to be made in the said action, should have 50 per cent. of the verdict recovered therein. The action was commenced and prompt notice in writing was given to the defendant that the plaintiff claimed a lien upon the papers and subject-matter of the action for his services therein, and requesting it to make no settlement with said Olsen or with any person other than himself. After the defendant had served its answer and the case, duly noticed for trial by both parties, had been placed upon the calendar for trial, the defendant, without notice to the plantiff herein, settled with the plaintiff therein and agreed to pay him the sum of $1,500. Upon receiving from him a written release of all claims by reason of said cause of action, it paid him that amount, but no provision was made for the satisfaction of the plaintiff's lien. The settlement was made in secret, and on the next day, Olsen, who was financially irresponsible, returned to Norway, his native country, where he has since remained. The plaintiff alleged that, by virtue of these facts, he was justly entitled to the sum of $750, one-half of the amount paid in settlement as aforesaid, but that no part thereof had been paid by either of the defendants, although payment had been duly demanded. His demand for judgment was that his lien in said action as attorney for said Olsen "be ascertained and foreclosed against said defendants and each of them; that this court settle and determine the equities of the parties hereto in relation to plaintiff's said lien in the action herein before referred to"; that by reason of the premises the defendants, or either of them, be adjudged to pay him the amount claimed "based upon" said settlement, and for such other relief "in the premises as shall be just and equitable."

The defendant railroad company demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sus

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