On appeal from the Essex County Circuit Court, whose opinion is printed in 13 N.J. Mis. R. 517.
For the plaintiff-appellant, Carl & William Abruzzese (Carl Abruzzese, of counsel).
For the defendant-respondent, Harrison & Roche (Auguste Roche, Jr., and John J. McDonough, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The question for determination here is whether the plaintiff, a layman, may recover in an action on express contract a portion of a contingent fee paid
for legal services to an attorney to whom he brought the case. The attorney with whom the agreement for the division of the fee was made, Thomas S. Henry, is dead and the suit was brought against his executor.
There is no room for doubt as to the plaintiff's theory of his cause of action. It is clearly stated in the complaint in the cause, in these words: "On or about June 28th, 1928, Thomas S. Henry, a practicing attorney and counselor-at-law of New Jersey, entered into an agreement with plaintiff, Mat-thew J. Ready, to represent one Frederick J. Brokaw, in certain condemnation proceedings instituted by the Essex county park commission to obtain for said Frederick S. Brokaw as much as the lands and premises sought to be condemned were reasonably worth." The ensuing paragraphs of the complaint recite that the said Henry was to charge said Brokaw ten (10%) per cent. of the award as and for fees in the matter; that the plaintiff was to assist the attorney in the preparation of the facts and the law of the case; that the said Henry agreed to pay the plaintiff one-half of the amount he received as a fee; that the attorney received $6,000 for his services; that the plaintiff performed all the services in accordance with the agreement; that the plaintiff was paid $100 on account and that there is still due and owing him the sum of $2,900; that the said Henry died on March 17th, 1934; that plaintiff's claim was presented to the executor of the estate and rejected.
A second count in the complaint, grounded on a quantum meruit, was abandoned at the trial.
It is a close question whether the plaintiff, by the evidence submitted in support of his claim, proved that an express contract was entered into between him and the deceased attorney on June 28th, 1928, or thereabouts, as he declares in his complaint. In an endeavor to prove the making of the contract as of that date, the plaintiff offered two witnesses, Mr. Archer and Mr. Skillman, members of the bar of the State of New York, who testified that the plaintiff and the deceased discussed the matter of the condemnation of Mr. Brokaw's farm and their arrangement about the division of the contingent
fee, on November 3d, 1928, while all four were dining together in a restaurant in Newark. A third witness, Mr. Romano, an attorney of this state, testified that while he was a law clerk in the office of Mr. Henry he overheard the plaintiff and the decedent discuss the various phases of the case before the trial and that Mr. Henry promised to pay over to the plaintiff one-half of whatever fee he received for his services. The witness fixed this conversation as having taken place early in the summer of 1928. It is unnecessary to discuss this element of the case further because, in our view, the determination of the question rests on more fundamental considerations.
From the portion of the complaint first above quoted, it is perceived that the plaintiff bases his right to recover on the proposition that the deceased attorney entered into an agreement with the plaintiff to represent a third party in a legal proceeding, and promised to pay plaintiff one-half of the contingent fee awarded him for those legal services. This statement seems to be closed to dispute since in answer to a demand for particulars as to whether plaintiff, with Mr. Henry, was retained by the client, the ...