The title of the action indicates that this is a controversy between attorneys and client, *Page 59 but it is not so in reality. A jury has decided that Barkley's injuries were due to the fault of the New York Central and Hudson River R.R. Co. and fixed the damages, which, with interest to the present time, amounts to about $13,000 and the railroad company has paid over the money in obedience to the order of the court, so the railroad company is not interested in this controversy; nor does Barkley, the injured man, seem to be interested, for he acknowledges that under the contract made he is entitled to only the one-half already paid, so that the dispute relates to the other half, now amounting to about $6,500 and on deposit with the treasurer of Monroe county to await the further order of the court.
The question pressing for solution is whether Frank C. Sargent, who was substituted as attorney for Barkley after the entry of judgment and its affirmance, shall have the entire fund, or whether he shall be compelled to relinquish his grasp upon some part of it for the benefit of Raines Brothers, who, as counsel for Barkley's attorneys of record, tried the case at the Circuit, prepared the brief and argued the case at the Appellate Division.
Sargent is not entitled to any special sympathy in his effort to secure the half of the moneys that the jury adjudged due for the injuries of Barkley, for he contributed nothing towards getting the judgment, and his demand, therefore, to share equally with Barkley in the amount awarded to him, as compensation for his injuries, has its only justification in the letter of his contract.
On the other hand, Raines Brothers, as counsel, not only conducted the trial, but performed the services on appeal which resulted in an affirmance of the judgment. It would seem equitable, to say the least, that having done all the effective work, they should share with Sargent in some measure in the fund, unless guilty of some misconduct that should be properly visited with forfeiture of compensation; and no claim of that nature is made. It is true that Barkley's attorneys, for whom the Raines Brothers acted as counsel on the trial of the action and on the appeal from the judgment, have been *Page 60 adjudged negligent in another proceeding, but it was not adjudicated therein that the Raines Brothers were at fault, nor has an attempt been made to show in this action that they were in anywise to blame, and it would seem to follow in all good conscience, therefore, that they should be compensated for their services out of this fund; and the question is whether their contract compels them to share with Barkley's attorneys in the loss of compensation.
The answer to that question depends upon the construction to be given to certain contracts entered into between Barkley and his attorneys and between the attorneys and Raines Brothers. If they constituted an employment of the Raines Brothers by Barkley, then the Raines Brothers are entitled to share with Sargent in this fund. If, on the other hand, they amounted to a hiring of the Raines Brothers by the plaintiff's attorneys, Barkley is not responsible to them, the Raines Brothers, and they must suffer because of the adjudication that the plaintiff's attorneys were negligent, and, therefore, not entitled to the agreed compensation.
Barkley made a contract with his attorneys to pay to them one-third of the recovery for their services in the action, but before the action came on for trial Barkley and his attorneys seem to have had some consultation as to the desirability of employing George Raines of Rochester to assist in the trial of the action, and of his brother Thomas Raines for the preparation of the case for trial, and the result was an agreement on Barkley's part that this should be done, and in order to accomplish it he agreed that one-half of the recovery, instead of one-third, should be appropriated to the payment of attorneys and counsel. The agreement signed by Barkley, among other things, contained the following:
"Whereas, my said attorneys propose to employ other counsel to help try the case, and it is proposed by them and agreed to by methat I employ Hon. George Raines of Rochester for that purpose, to be assisted, if necessary, in the preparation of the case by his brother at Rochester."
The agreement further provided that Barkley should pay *Page 61 one-half of the moneys recovered from the railroad company to his attorneys, out of which the Raines Brothers should be compensated for their services, but in the event that they should not be engaged, then the agreement to be void and resort had to the former agreement.
Thereupon Barkley's attorneys entered into an agreement with Raines Brothers by which it was provided, among other things, that,
"Said Raines Brothers agree to render their services and assist in retrying said case if a new trial is granted therein and as often as a new trial is had therein."
They also agreed to argue the case on appeal if requested to do so by the plaintiff's attorney.
Now it will be observed that Barkley did not make a written contract with the Raines Brothers, but did make one with his attorneys, who in turn made one with the Raines Brothers, and, therefore, there is some color for the claim that the Raines Brothers were not employed by Barkley, but if we examine the contracts closely for the purpose of ascertaining what the parties intended, it would seem as if the conclusion must be reached that all of the parties to the agreement intended that Barkley should employ the Raines Brothers, but inasmuch as he did not propose to take any personal risk in the matter, he desired that it should be provided that neither attorneys nor counsel should have compensation except out of the recovery, and so he arranged to increase the proportion of the recovery to be paid for the services of attorneys and counsel in order to secure the services of Raines Brothers, while the latter desired such an agreement as should give them the right to a lien on, and share in, that portion of the recovery which Barkley was willing should go to his attorneys and counsel.
The parties evidently deemed the form of the agreements adopted as best calculated to effect that result, but that the understanding was that Barkley was employing the counsel is shown not only by the fact that he agreed that a larger proportion of the recovery should be devoted to the payment of counsel in the event that the Raines Brothers should agree to take *Page 62 hold of the case, but also by the recital in the agreement that "It is proposed by them (his attorneys) and agreed to by me that I employ Hon. George Raines of Rochester, for that purpose."
The agreement further provided the method by which the compensation, if any, should be secured and the attorneys were to be merely the conduit through which the increase in compensation should, in the event only of success, reach the Raines Brothers, thus securing Barkley against the possibility of other and further demands; but these were incidents to the general scheme of the employment of Raines Brothers by Barkley, intended for his protection as well as that of Raines Brothers, and should not be permitted to overcome the recital that "It is * * * agreed to by me that I employ Hon. George Raines of Rochester for that purpose," which clearly manifests the understanding of the parties.
If we give to this recital that full force and effect which its terms plainly warrant, we must reach the conclusion that it was the intent of the parties that Barkley should employ the Raines Brothers as counsel and that they should be paid through his attorneys, to whom he agreed to give an increased compensation for that purpose and for no other. Indeed the agreement was to be void unless Raines Brothers should accept the employment. If the contracts be so construed, it will be in accord with the manifest intention of the parties and work out a just result in this case, inasmuch as it allows counsel who did the work to share with an attorney who did not, in the fund now in the hands of the county treasurer.
But it is said in the prevailing opinion that the statement in the contract to the effect that it was agreed that Barkley should employ the Messrs. Williams is a mere recital, and being in conflict with the operative part of the agreement, the former must give way. Without discussing either the principle or the authorities relied upon in support of the argument that the plain words of recital in the Barkley contract should be utterly disregarded, it may not be out of place to say that the principle of construction invoked is subordinate to that which has often been designated by this court as the polar *Page 63 star of interpretation, namely, the intent of the parties. It was said in Gillet v. Bank of America (160 N.Y. 549, 555), "In the construction of written contracts it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion and the apparent object of the parties, to determine the meaning and intent of the language employed. Indeed, the great object, and practically the only foundation of rules for the construction of contracts, is to arrive at the intention of the parties. This is a most conspicuous and far reaching rule and involves the nature of the instrument, the condition of the parties and the objects which they had in view, and when the intent is thus ascertained, it is to be effectuated unless forbidden by law. Contracts are not to be interpreted by giving a strict and rigid meaning to the general words or expressions without regard to the surrounding circumstances and the apparent purpose which the parties sought to accomplish."
Applying this rule so recently laid down by this court to these contracts, we take up what has been spoken of as the operative part of the contract, remembering that in the recital it is plainly stated that Barkley was to employ Raines Brothers as counsel in the case. In effect its provisions are that Barkley agrees to deliver to Messrs. Williams one-half of the amount received of the railroad company for two purposes, one, to compensate them for their services as attorneys, and, two, that they should deliver the remainder to Raines Brothers in compensation for their services as counsel and in place of any other payment to them. It then provides that the Messrs. Williams are to agree with Raines Brothers to compensate them from the one-half that should be turned over to them for services, and that in the event that Raines Brothers should not be employed, that the agreement should be void. It seems to be apparent from this statement that the fundamental purpose of this contract was to procure the services of Raines Brothers for the benefit of Barkley and to provide for their compensation out of a recovery from the railroad company. By this *Page 64 contract the Messrs. Williams were not in any proper sense to pay Raines Brothers for their services. They incurred no personal liability, nor did Raines Brothers in any way accept their personal responsibility as security for their pay, but Messrs. Williams were to deliver to Raines Brothers a part of the particular fund which was to consist of one-half of any amount which Barkley should receive from the railroad company. The manifest purpose of Barkley's agreement, therefore, was to provide a fund to secure to the Raines Brothers compensation for their services. It was only to accomplish that purpose that the change in the form of the original contract became necessary. Nor was there any provision in the subsequent contract by which the Messrs. Williams personally agreed to compensate the Raines Brothers for their services. Barkley agreed to pay over one-half of the recovery against the railroad company to Messrs. Williams, not alone to compensate them, but for the further purpose of discharging all liability that he should incur to Raines Brothers for any services that they should render in the action. In other words, it was the intent of the parties to secure the services of Raines Brothers and to provide that they should be paid therefor, not by the Messrs. Williams, but by Barkley from the particular fund which the latter should set apart for that purpose from the recovery, if one should be had.
The intent of the parties, as gleaned from the operative portions of the contracts, is, therefore, in harmony with the assertion of the parties as expressed in the recital of the first contract to the effect that it was proposed by the Messrs. Williams and agreed to by Barkley that the latter should employ the Raines Brothers as counsel in the case. And the contract should be given the effect which the parties to it intended.
I advise a reversal of the order of the Appellate Division and an affirmance of that of the Special Term.
GRAY, BARTLETT and CULLEN, JJ., concur with VANN, J., for affirmance; MARTIN and WERNER, JJ., concur with PARKER, Ch. J., for reversal.
Order affirmed, etc. *Page 65