its affiliated corporations, to the extent of $ 194,000 per annum.
The evidence further disclosed that from the date of the contract through December 13, 1956, when the $ 90,000 settlement was finally agreed upon, plaintiff wrote nineteen letters to defendant or its New Jersey attorney, Mr. Van Riper. Mr. Van Riper wrote one letter, and the defendant a second letter to the plaintiff during the same period. The substance of each of these nineteen letters was disclosed in the evidence and was only of uncertain assistance to the defendant.
The plaintiff described at some length, albeit in general terms, the nature and extent of his services to the defendant. They consisted principally of ascertaining the policies and attitudes of F.H.A. in other cases and toward that of the defendant, and reporting this information to defendant's representatives. Plaintiff also testified that because of his contractual relationship with the defendant he kept abreast of the current rulings and decisions of the Administration in cases in which it was concerned. Plaintiff conceded that his representation of the defendant was not disclosed to the Administration and that the direct dealings between the defendant and the Administration were conducted by Mr. Van Riper. Plaintiff repeatedly and emphatically denied that he was hired by the defendant for any influence which he might be able to exert over or with the F.H.A. or its representatives. He contended that, on the contrary, he was hired for 'talent, background and years of experience.'
Plaintiff called as an expert another Washington attorney who testified that in his opinion the services which the plaintiff testified that he rendered to the defendant were reasonably worth between $ 25,000 and $ 30,000. However, upon the hypothesis that the matters in difference between the defendant and the F.H.A. could have been settled before the plaintiff was retained for approximately $ 100,000 and that they were ultimately settled for $ 90,000, this witness conceded that $ 25,000 would not be a proper fee for Mr. Gray in addition to the fee in a like amount which defendant's other attorney, Mr. Van Riper had charged and received.
I adhere to my previous ruling that an agreement for a contingent fee will not be condemned and struck down in absence of evidence that it is excessive or unreasonable to such a degree that it compels a finding that the attorney intended to over-reach. Such is not here the case, but the fact that the contingent fee arrangement is not condemned per se does not divest this Court of jurisdiction to inquire into its reasonableness. It has long been and still is the law of New Jersey that when a fee agreement between attorney and client is called in question by the client, a Court in the exercise of its equitable discretion will sustain the agreement 'only to the extent of securing to the attorney reasonable compensation under all the circumstances of the case * * *.' Soper v. Bilder, Ch. 1917, 87 N.J.Eq. 564, 569, 100 A. 858, 860; Hughes v. Eisner, App.Div.1951, 14 N.J.Super. 58, 81 A.2d 394, appeal dismissed, 1951, 8 N.J. 228, 84 A.2d 626. The opinion in the Soper case describes the criteria for the determination of the reasonableness of an agreement for compensation between attorney and client. These criteria were quoted in my previous opinion. On the other hand, where, as in the present case, the parties themselves have come to an agreement touching the attorney's fees and the agreement was arrived at after apparent complete disclosure and full consideration and there was no fraudulent or unfair conduct on the part of the attorney, and, as to the client, the agreement is fair, such an agreement should not be disturbed by the Court, but the parties should be left where they have placed themselves. Grimm v. Franklin, Ch.1928, 102 N.J.Eq. 198, 140 A. 236, affirmed per curiam E. & A.1929, 110 N.J.Eq. 573, 146 A. 914.
As previously herein stated, the agreement in suit was made in behalf of the defendant by Mr. Brunetti, its president and the owner of all of its stock. He has offered no testimony respecting the circumstances surrounding the manifested mutual assent of the parties leading to the achievement of the agreement, the correctness of the written embodiment of the agreement which he personally signed in his official capacity, or the fairness or reasonableness of the amounts required to be paid in accordance with the terms thereof. As sole stockholder of the defendant, it would be against Mr. Brunetti's financial interest to be compelled to pay the plaintiff the contingent fee provided by the terms of the contract in suit. Mr. Brunetti, therefore, had every reason and motive to present any evidence he might have to refute the claims of the plaintiff. This he failed to do despite his conceded availability as a witness. It is hornbook-law that where a party fails to testify or produce evidence within his control, which it would be to his interest to produce, a court, sitting as the trier of the facts, may infer from such failure that such testimony or evidence if given or produced would have been unfavorable to the party in whose behalf it was offered. Kuhn v. United States, D.C.N.J.1958, 157 F.Supp. 331; Michaels v. Brookchester, Inc., 26 N.J. 379, 140 A.2d 199; Interchemical Corp. v. Uncas Printing & Finishing Co., App.Div.1956, 39 N.J.Super. 318, 120 A.2d 880.
However, the nature and extent of plaintiff's services to the defendant have been disclosed in the proofs and the Court has had the benefit of expert testimony respecting the issue of reasonableness of the contingent fee. In view of the uncontradicted evidence that the plaintiff has only received $ 12,000 on account of the services which he rendered, an additional fee of $ 7,500 appears to afford, in the Court's opinion, generous compensation to the plaintiff for the services which the Court finds that he rendered to the defendant under the contract in suit.
The foregoing supplemental opinion shall be deemed to constitute this Court's findings of fact and conclusions of law upon the issues reserved in its prior opinion. Plaintiff is entitled to judgment against the defendant in the sum of $ 7,500 together with interest thereon from February 21, 1957, and costs. An order may be presented in accordance with the views herein expressed.
© 1992-2004 VersusLaw Inc.