(dissenting):
It seems to me that the minimum which should be required of a lawyer in relation to his client is that he make clear how much his fee is going to be. The majority concedes that Shiya left the terms of his retainer ambiguous. While I would consider this to be enough to justify denying Shiya the recovery he seeks, I believe that the Committee’s interpretation of their agreement is in fact the correct interpretation.
The principal question is the meaning of the phrase “25% of the monies due and owing from Knopf to the Comite” in Shiya’s letter of November 1, 1956. The letter prepared by Shiya for Rahme’s signature indicates that Shiya’s 25% interest was intended to apply only to royalties accrued to the date of termination of the action, including any appeal. Basile’s postscript to his September 8th letter (“He is asking twenty-five percent at the beginning and twenty-five percent through appeal”) and Rahme’s letter of October 11th (“It was agreed between them that the committee pay him 25% of the frozen money in New York upon termination of the case * * *.”), support this view as does Shiya’s failure to assert any claim to renewal royalties paid to the Committee after termination of the Surrogate Court proceedings.
If any ambiguity remains as to the meaning of the phrase “due and owing” in the November 1st letter, it ought to be construed against Shiya who could easily have avoided any difficulty by providing clearly for a 25% interest in the future royalties.