Hickey v. Baird

Christianoy J.: If it were necessary to determine upon the correctness of the first and third points in the charge to the jury, we should probably be compelled to reverse the judgment; as we have failed to discover anything in the nature of the contract set '.forth in the declaration, or proved by the evidence, to render it objectionable on the ground of champerty, even though it might have been agreed, as intimated in the first point of the charge, that the plaintiff should ■pay his share of the expenses; upon which latter point, however, there appears to have been no evidence. Nor do we see anything to justify the intimation of the court to the jury, that this contract was to be looked upon with less favor than any other contract. The law can not treat as immoral, or opposed to its just policy, any such reasonable effort to find property of an unwilling debtor to satisfy a debt which has been found due by the solemn adjudication of a competent court. Nor are we satisfied that there was anything in the case to warrant the instruction contained in the third [36] point, “that under the contract between the parties it was necessary for the plaintiff to demand one-third of the land before action could be brought.” Such, we think, was not the character of the contract declared upon, nor of that proved by the evidence of Mr. Bigelow, unless the land had been shown to have been received with the concurrence of the plaintiff. But the testimony of McHugh might have some tendency to show that the contract was of the character indicated by the charge, and that the land had been received with the plaintiff’s consent. In this view it was a fan- question for the jury to find from the evidence what was the true character of the contract, and whether the lands were received with the assent of the plaintiff; but we do not see how the court could assume to decide these disputed questions of fact as ^matter of law. But however erroneous may have been the charge upon the points already noticed, the judgment can not be reversed if the judge was right in the second point of his charge: because, if there was no proof in the case on which the jury could estimate the plaintiff’s damages, then the plaintiff would not have been entitled to a verdict under any charge which the court could have rightfully given, and, therefore, the plaintiff could not have been injured by the errors complained of. The correctness of this point in the charge must depend upon the nature of the rights and obligations created by the contract. Taking the contract as shown by the testimony of Mr. Bigelow (which is the most favorable view of it for the plaintiff), we do not think it can be treated as a present transfer of any interest in the judgment to the plaintiff, nor as surrendering to him the control of its collection. The plaintiff still retained his own attorney in connection with the claim, and was, we think, still at liberty to receive or collect the whole amount from the Gilletts, or to for [37] give the debt or discharge the judgment, provided he did so before any thing had been done under the contract by the plaintiff. But if he did so after the plaintiff had entered upon performance, by searching for property, and before he had succeeded in finding any, the plaintiff would be entitled to a reasonable compensation for his services. After the plaintiff had succeeded in finding property liable to levy, or at least after notice to the defendant or his agent, that such property had been found, the defendant would have no right to discharge the judgment without paying the plaintiff one-third the amount of it, if the property found was sufficient to satisfy the whole; or if the value of the property were less than the judgment, then one-third the value of the property so found; 'and such payment must have been made to the plaintiff in cash, though the defendant had seen fit to take property instead of money, unless such property was received by consent of the plaintiff. Such, we think, is the fair construction of the contract testified to by the plaintiff’s own witness. But the plaintiff insists that after he had found any property, and a levy was made upon it, the defendant had no right to release the judgment without paying him one-third of the whole judgment, and this without reference to the value of the property found by plaintiff, or to the amount which defendant received as the consideration for discharging the judgment. If this be so, then the same consequence would have followed if the plaintiff had only succeeded in finding property to the value of one dollar, as if he had found an amount equal to the judgment. Nor is this all; for it would also follow that, after the plaintiff should have found a single dollar’s worth of property, the defendant could not have received the amount of the judgment from the judgment debtor, though tendered in cash, and given a release, without rendering himself liable to pay the plaintiff one-third of the whole amount of the judgment. We can not suppose this to have been the intent [38] of the parties; and we can see nothing in the contract proved, when taken in connection with the subject matter, to warrant such a construction. Under the construction of the contract which we have adopted, based upon the testimony most favorable to the plaintiff, he would have been entitled to recover in this action one-third of what the property found and levied upon should be shown to be worth. The testimony of McHugh might have some tendency to show that the plaintiff was only entitled to one-third of the land received by the defendant. But there was no evidence which could entitle the plaintiff to a verdict under either aspect of the mase; the value of the property found and levied upon was not shown, and the land received by the defendant in satisfaction was admitted by the plaintiff to be of no value whatever. If this had been a case in which the recovery of nominal damages would have entitled the plaintiff to costs, then, upon the hypothesis that a breach of the contract was sufficiently shown, he would have been entitled to nominal damages. But in actions of this particular character, nominal damages are only given for the purpose of carrying costs, and under our statute (Comp. L. ChAp. 174), such damages would not entitle the plaintiff to costs, and therefore should not be given. The second point of the charge was therefore entirely correct, and no charge which the court could properly have given would have entitled the plaintiff to a verdict. The judgment must therefore be affirmed. The other Justices concurred.