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case of the latter sort, save the present, has

(5 Boyce, 182) ever reached an appellate tribunal. Of com- SAULSBURY et al. 7. AVERICAN VUI, mon-law cases we find the following four:

CANIZED FIBRE CO. Sheffer v. Willoughby, 163 Ill. 518, 45 N. E.

(Superior Court of Delaware. New Castle. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483;

June 11, 1914.) Crocker V. Baltimore Lunch Co., 214 Mass. 177, 100 N. E. 1078; Pantaze y. West, 71. EVIDENCE (8 368*)-PRODUCTION OF WRIT

TEN INSTRUMENTS ON NOTICE-EFFECT. Ala. App. 599, 61 South. 42; Doyle v. Fuerst

Where a party gives notice to the adverse & Kraemer, 129 La. 838, 56 South. 906, 40 L. party to produce a writing at the trial, and R, A. (N. S.) 480, Ann. Cas. 1913B, 1110. In the adverse party without objection produces all of them the right of action was based up it, and the party inspects it, it becomes, at comon negligence. We know of no case, aside mon law, evidence without further proof. from the present, in which an attempt has Cent. Dig. 88 444, 1540-1558; Dec. Dig.

[Ed. Note. For other cases, see Evidence, ever been made in cases brought to recover 368.*] for the harmful consequences resulting from 2. EVIDENCE (8 368*)–PRODUCTION OF WRITunwholesome food' or drink supplied by the TEN INSTRUMENTS ON NOTICE-EFFECT. keeper of an inn, restaurant, or boarding The production of writings at the trial, house in the line of his business to recover pursuant to order of court under Rev. Code upon the strength of an implied condition or 1852, amended to 1893, p. 796, c. 107, § 13, as

amended by 20 Del. Laws, c. 121, providing that warranty of quality. Those which have in pending actions the court, on motion and due grown out of a sale of provisions by a dealer notice, may order a party to produce writings are, of course, not in point. In the first of in his possession which contain evidence pertithe cited cases the obligation of a restaurant the party applying for an order something that

nent to the issue, merely makes available to keeper are discussed, and a statement of the otherwise is beyond his reach; but to make law made which very plainly means, and has the writing admissible he must prove it as been generally understood to mean, that the though he had been in possession of it himself. only remedy for the consequences of eating Cent.' Dig. gs444, 1540-1558; Dec. Dig. $

[Ed. Note.-For other cases, see Evidence, unwholesome food supplied by an innkeeper 368.*] or restaurant keeper in the regular course of 3. ATTORNEY AND CLIENT (8 144*)—COMPENSAhis business is one for lack of due care.

TION CONTRACTS CONSTRUCTION Beale op Innkeepers, 88 169, 302, so states "RETAINER." the law. See, to the same effect, 22 Cyc. A resolution by the board of directors of 1081; 16 Amer. & Eng. Ency. of Law, 547.

a corporation, which recites that attorneys

named shall be retained on behalf of the corIn Bigelow v. Maine Central R. Co., 110 poration, to represent it in negotiations and in Me. 105, 85 Atl. 396, 43 L. R. A. (N. S.) 627, the prosecution of claims, and which directs action was brought against the defendant for payment to the attorneys of a specified sum as the consequences to the plaintiff of his having fixes as compensation a contingent fee based on

retainer, and a subsequent resolution, which eaten unwholesome canned asparagus served the amount of recovery, are, when accepted by to him in the defendants dining car. The the attorneys, separate contracts, and the attordeclaration was in case, and its allegation neys are entitled to both the retainer fee and was that the defendant was negligent. Not-covered, without deduction of the amount of the

to the specified percentage on the amount rewithstanding this statement of the pleadings, retainer; a “retainer" being the act of a client the plaintiff contended that she was under no by which he engages an attorney to manage for duty to show either privity of contract or him a cause in which he is a party, or otherwise

generally to advise him as counsel. negligence, since there was an implied war

[Ed. Note. For other cases, see Attorney ranty of wholesomeness, and the defendant and Client, Cent. Dig. 88 332, 333; Dec. Dig. was an insurer of the quality of the aspara-$ 144.* gus. The court held that in any event the For other definitions, see Words and Phrases, defendant could not be held to be an insurer vol. 7, pp. 6196, 6197.) of the quality of canned goods or a warrantor 4. EVIDENCE (8 389*) — PAROL EVIDENCE of it, and for that cause directed judgment

MODIFYING UNAMBIGUOUS CORPORATE RESfor the defendant. This case, followed by

OLUTIONS. Trafton v. Davis, 110 Me. 318, 86 Atl. 179, effect of an unambiguous resolution of the

Parol evidence is inadmissible to change the presents an aspect of the subject of implied board of directors of a corporation. warranty under common-law principles ' '[Ed. Note. For other cases, see Evidence, which does not concern us, and in its disposi- Cent. Dig. 88 1717, 1718; Dec. Dig. § 389.*] tion no light is shed upon the views of the 5. ATTORNEY AND CLIENT (8 148*)-COMPENSAcourt as to whether there would have been TION-CONTINGENT FEE. an implied warranty had the food served not

An attorney employed to act for a client been canned goods.

for a percentage of the amount recovered in a

litigation is entitled to a percentage on the Reasons of appeal for other causes than amount awarded the client, and also on an that discussed call for no consideration, since amount which the client would have been the plaintiff must fail in her action.

obliged to pay, but for a decree releasing him

from liability. There is error, the judgment is set aside,

[Ed. Note. For other cases, see Attorney and a new trial ordered. The other Judges and Client, Cent. Dig. 88 352, 353; Dec. Dig. S concurred.


•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Action of assumpsit by Willard Saulsbury duce the same, stating, however, that he and others against the American Vulcanized | reserved to himself all rights to object to Fibre Company. Judgment for plaintiffs. their introduction into evidence when offered.

Argued before WOOLLEY and RICE, JJ. This proceeding was had under a statute of

James I. Boyce, of Wilmington, for plain- this state which provides that: tiffs. William S. Hilles, of Wilmington, for

“At any time during the pendency of actions

at law, the court on motion and due notice defendant.

thereof, may order a party to produce books or

writings, in his possession or control, which Action of assumpsit to recover compensa- contain evidence pertinent to the issue, under tion for professional services rendered the circumstances in which production of the same

might be compelled by à Court of Chancery.” defendant by the plaintiffs in instituting and Rev. Code, c. 107, § 13, as amended by chapconducting for the defendant certain litiga- ter 121, vol. 20, Laws of Delaware. tion in the Court of Chancery of the state

Upon the plaintiffs' petition and by authorof Delaware. The issues of fact as well as ity of this statute, the courtof law were tried by the court, pursuant to “ordered, that the defendant do produce on the the statute which permits trial in this man- 19th day of May, 1914, the books or writings ner when agreed to by the parties.

mentioned in schedule appended to the said moIn opening, the plaintiffs stated that their tion and marked Exhibit A, at the office of the

prothonotary of this court at Wilmington for case was to be proved largely by documen- the use and inspection of the plaintiffs during tary evidence.

the pendency and at the trial of the said cause. Selecting one from a great number of

We understand that pursuant to that orbooks, documents and papers produced by the der, all the books and writings therein dedefendant upon an order of the court, made scribed, excepting certain of them shown not several days before the trial, Mr. Boyce said: within the control of the defendant, were proI now offer this portion of these minutes in duced at the time and place named in the orevidence, asked for by us to be produced by der and that they have since been transferred the defendant.

to and are now in the presence of the court. Mr. Hilles: We have not been asked to We also understand that the only notice for produce; they have been produced in the production made by the plaintiffs upon the prothonotary's office by an order of your defendant was the notice preliminary to the honors.

motion to produce. This being the state of Mr Boyce: As I understand, this book has the record, we will hear argument, if denever been produced in the prothonotary's

sired. office.

Mr. Boyce: I offer as evidence the minutes WOOLLEY, J. If the minutes were pro- of the meeting of the board of directors at duced by the defendant at the trial on notice which certain officers of the defendant comfrom the plaintiffs, and were by them in

pany for the year 1913 were elected. Upon spected, they thereby become evidence. If

production by the defendant upon the court's they were not so produced, but were produced order and after inspection by the plaintiffs, upon the order of the court, such produc- they are evidence under the decisions of this tion and subsequent inspection do not make state, citing Netter v. Stoeckle, 4 Pennewill, them evidence. Being made available by the 345, 56 Atl. 604; Thomas v. Railroad Co., 2 court's order, they are here to be proven ac- Pennewill, 411, 47 Atl. 380; Kelly v. Associacording to the rules of evidence.

tion, 1 Marv. 183, 40 Atl. 954; Frank V. Mr. Boyce: These have been produced by Frank's Adm'r, 1 Houst. 245; Deringer v. the order of the court.

Deringer's Adm'r, 5 Houst. 148. Mr. Hilles: I have never received from the

Mr. Hilles: I hold they are not in eviplaintiffs a notice to produce. I have pro-dence. duced these minutes upon the court's order in relation to these papers was that they

The order which your honors made for the purpose shown by that order.

WOOLLEY, J. The record discloses that were to be produced for the inspection of on May 14th counsel for the plaintiffs notified this case, and I think during the case.

counsel on the other side prior to the trial of

Uncounsel for the defendant that on May 15th questionably that is not a production of the he would move the court"to order the defendant to produce the books paper or document upon notice given to the or writings mentioned in the schedule hereto ap- other side, which notice the counsel on the pended, which said books or writings are in the other side has the right to accept or decline possession or control of the defendant and which to accept, as he sees fit. Consequently if he contain evidence pertinent to the issue, such does voluntarily produce such documents production to be made for use during the pendency and at the trial of said cause under such upon notice, the production by him voluntaterms and at such times as the court may di- rily makes them evidence without further rect."

proof. But certainly your honors' order upUpon the date named in the notice, coun-on a party does not make the documents evisel for the plaintiffs made the motion for dence, nor does it prove the validity of the production, in conformity with the terms of documents offered. the notice. Counsel for the defendant waived WOOLLEY, J. [1] There are two methods any question of the pertinency of the papers whereby a party may procure from his addemanded, and submitted to an order to pro- versary documents and writings necessary to

the proof of his case. The first is the com-
The first is the com- , through the court's order.

through the court's order. The party promon-law method by giving the adverse party ducing the paper under the court's order notice to produce the writing at the trial, and then has his first opportunity to object to upon its production by the party notified and its admissibility as evidence, and to except to upon its inspection by the party calling for it, the ruling of the court. In other words, the it becomes evidence without further proof. production of writings at trial, under an or

The reason for this rule lies in the theory der authorized by the statute, simply makes that the production of a writing on notice, available to a party something that otherwithout objection by the party producing it, wise is beyond his reach, and if he chooses amounts on his part to an admission of its to obtain it in this way, he must prove it genuineness and relevancy, and inspection by just as though he had been in possession of the party calling for it is in effect an offer it himself. We know of no rule, however, of the writing as evidence, thereby dispensing that prevents a party resorting both to an with the necessity of formal proof.

order of court to produce at trial and the Upon notice to produce a writing the party common-law notice to produce at trial, which notified may object to its admission in evi- was not done in this case. Whether performdence, and the question of its admissibility ance under the notice is possible because will be determined by the court before it is of compliance with an order of the court to produced and submitted for inspection. But produce would seem to depend upon whether if he fails to produce, when not relieved by the party notified has such possession and an objection sustained by the court, the par-control over writings as to enable him to ty calling for the instrument is then free produce them on notice, when under the to make proof thereof by secondary evidence. court's order he has already produced and

This method was found to have its hazards surrendered them. and limitations, as it carried the risk of

There are many cases in our Reports inspecting a paper when its contents were touching this statute, but in none of them unknown, and restricted the use of the has been decided the question whether a papers so produced, to evidence at trial, writing produced under the order of the hence the enactment of the statute.

court becomes evidence upon its production [2] Under the statute the court may or- and inspection in the sense in which it beder a party to produce a writing shown to becomes evidence under the common-law rule pertinent to the cause, either for the inspec. of production under notice and inspection. tion of a party before trial, or for use at The question was approached, but not detrial, or, as in this case, for both purposes. cided, in the case of Taylor v. Jackson, 5 Upon such an application, usually made long Houst. 224, 226, where counsel seeking papers before trial, the court does not pass upon from his adversary, in an abundance of cauthe admissibility of the paper as evidence. tion supplemented the order of the court to It makes the order upon being shown prima produce by the common-law notice to profacie that the testimony sought is pertinent to the cause, and leaves the question of its duce, and then proved the paper by the subadmissibility to be determined when it is scribing witness, thereby indicating that the later offered in evidence at the trial. When court did not hold the paper to be in evidence the order is to produce before trial, the ob- upon the production under its order and ject of the party asking for the production. | the subsequent inspection. may be to enable him, by inspection, to pre-dence by force of their production under

As the minutes in question are not evipare his pleading or by making a copy to prepare for secondary evidence in the event thé court's order and their subsequent inof the failure of his adversary to produce spection, they must be proved before they on, notice. When production is made for in- are admitted. spection before trial the order is obeyed

Upon proof by the secretary of the defendwhen the production is made and the op- ant company, who transcribed them, the minportunity for inspection is afforded, after utes were admitted in evidence. which the paper is returned to its owner and

The evidence produced and admitted on can be called for at trial only upon another the part of the plaintiffs and defendant that order or upon notice to produce. If the par has a bearing upon the decision in this case ty seeking the paper wants it at the trial. the court may so order its production. When appears in the statement by the court. in obedience to such an order it is produced at trial, it is by the order and the compliance WOOLLEY, J. (announcing the decision therewith made available to the party call of the court). Under authority of the statute ing for it. If he desires it simply for inspec- and by agreement of the parties, the matters tion, it is within his control for that pur- of fact at issue in this cause were tried by the pose; if he desires it for evidence, it is for court, judgment to be rendered upon its dethat purpose in his possession, and he may cision thereon as upon a verdict by a jury. offer it in evidence upon such prvof thereof Const. art. 4, $ 23; chapter 270, vol. 11, Laws as is required by the rules of evidence, in of Delaware; Rev. Code, p. 776. The case exactly the same way as though he gained was tried, testimony offered, objections interpossession of the instrument otherwise than | posed, rulings made and exceptions noted in all respects similar to like proceedings in a cery litigation, should be excluded from the trial by jury.

demand, as it represents a sum estimated by In order to preserve to the parties the percentage upon a principal sum never recovsame right of exception they would have had, ered, within the terms of the contract fixing if the case had been submitted to a jury upon the fee contingent upon the amount recova charge by the court, we will state our opin- / ered. ion upon the law as applied to our finding The questions submitted for determination, of fact.

therefore, are: This is an action in assumpsit, brought by

First, whether the $3,000 paid by the dethe plaintiffs to recover from the defendant fendant to the plaintiffs, pursuant to resoluthe sum of $20,350 with lawful interest there- tion of its board of directors of June 12, on from the 3d day of February, A. D. 1914, 1913, was paid as a retainer or in part satisas compensation for professional services faction for services rendered; and rendered as solicitors for the defendant in Second, whether certain accrued and uncertain litigation instituted, conducted and paid dividends, amounting to $1,750, payable concluded in the Court of Chancery of the to but released by one of the parties to the state of Delaware, pursuant to a contract in chancery litigation, were a part of the recovwriting, disclosed by correspondence of the ery in that litigation, upon which the plainparties and by resolutions of the board of tiffs under the contract here sued upon might directors of the defendant corporation,

estimate and demand, as a part of their conThe claim of the plaintiffs is that by tingent fee, the sum of $350. resolution of the board of directors of the

While there was a great volume of testidefendant corporation, passed at a meeting mony introduced in the case, that which was held on the 8th day of April, 1913, they were offered in proof of the contract between the retained as counsel and solicitors to represent parties was really circumscribed in amount the defendant in certain contemplated negoti- and mostly documentary in character. ations and impending litigation concerning

[3, 4] The first act of the parties appears the conduct and liability of one of its former by a resolution of the defendant corporation, officers, and that pursuant to another resolu- passed by its board of directors, at a meeting tion of the board of directors of the defend held on April 8, 1913. The preamble to this ant corporation, passed upon the 12th day of resolution recites a transaction by a deceased June, A. D. 1913, they were paid, as retainer, l established in the company a right of action

officer of the company, which, if proven, the sum of $3,000.

It is further claimed that in response to a against his personal representative for a very communication from the plaintiffs, asking the

considerable sum of money. Following the defendant corporation to fix the compensa- to the matter now in question, is the resolu

preamble, which has no important relation tion and proposing the terms for which they to the matter now in question, is the resolu

tion: would render professional services in the matter in which they had been retained, the ridge and the firm of Saulsbury & Morris, of

"It is resolved, that the said Arthur J. Selfdefendant corporation, by resolution of its Wilmington, Delaware, be retained by and on board of directors, passed on the 9th day of behalf of this company to represent it in negoJuly, 1913, accepted the terms proposed and tiations with the personal representative of the promised to pay the plaintiffs for their pro-ecution of any claim or claims, action or cause,

late president of this company and in the prosfessional services, a sum of money which which may be necessary to obtain for this comwhen calculated with reference to the con- pany proper restitution of any sum or sums tingency upon which the same was to be com- which may be due from the estate of the late puted, amounts to the sum of $20,350, forsion of the contract by which such acquisition

president by way of accounting or for a resciswhich sum, and the interest thereon from was made, and the officers of this company are the day upon which it is claimed to have be- directed to do and perform such acts and things come due, they bring their suit.

as shall be necessary to carry this resolution

into effect." The defendant does not controvert the correspondence and resolutions proven by the

A copy of this resolution was transmitted plaintiffs, and while not admitting does not by the vice president of the company to the deny its liability to pay the plaintiffs pursu- plaintiffs. ant thereto the sum of $17,000. As to its

At a meeting of the board of directors of liability to pay this sum, it made no defense. the defendant corporation, held on June 12, . For defense, however, to the balance of the 1913, the following resolution was passed: claim of $3,350, it maintains, first, that the

“Resolved, that the treasurer of this company sum of $3,000 paid by it to the plaintiffs, be and he hereby is authorized and directed to

pay to Arthur J. Selfridge and Saulsbury & nominally as retainer, was in fact a part Morris, Esqs., as counsel for this company as payment for services rendered by the plain- retainer for services in the cause of this compatiffs under the contract for services, and ny” against the executor of the late officer and therefore should be deducted from the gross

others, "the sum of $3,000." sum computed and demanded; and, second, A copy of this resolution was forwarded that the sum of $350, being a part of the sum the same day to the plaintiffs by the treasurclaimed by the plaintiffs based upon a per- er of the company, together with a voucher centage of the amount recovered in the chan- for $3,000, as shown by the following letter:



"Wilmington, Del., U. S. A., June 12, 1913. | which embodied a copy of the plaintiffs' let:

"Messrs. Saulsbury & Morris and Mr. A. J. ter offering the terms, and by the remainder Selfridge-Gentlemen : We herewith hand you of which, accepted those terms in the precise a voucher to the amount of $3,000.00 as retainer in the suit of equity in accordance with language of the plaintiffs' offer. The resolua resolution passed by the board of directors tion without the preamble is as follows: this day.

"Resolved, that this company does hereby ac-. Very truly yours,

cept said proposition and does hereby agree to "American Vulcanized Fibre Company, pay to said attorneys from time to time all the "D. W. Masters, Treasurer."

expenses incurred by them in connection with In acknowledgment of the receipt of the the preparation, prosecution and trial of this

cause and compensation for their services at copy of the resolution and the check for the rate of $100 per day for each day spent $3,000, the plaintiffs upon the same day mail- by them in preparation, prosecution and trial ed to the defendant company a letter of thereof, from the inception to the termination which the following is a copy:

thereof and in the event that twenty per cent

um of the amount recovered in said matters ex"Received of American Vulcanized Fibre Com-ceeds the amount so paid to them for their pany, at the hands of D. W. Masters, treasur- services, that they shall be paid a further sum er, check for three thousand dollars ($3,000), as equal to the difference between the sums so retainer for services in the cause of American paid from time to time for their services and Vulcanized Fibre Company,

pursuant twenty per centum of the amount so recovered, to resolution adopted by the board of directors and that the secretary be and is hereby inof American Vulcanized Fibre Company on June structed to deliver to said Saulsbury & Morris 12, A. D. 1913.

Arthur J. Selfridge. and Arthur J. Selfridge a certified copy of

“Saulsbury & Morris. this resolution showing the acceptance of the "June 12, 1913."

terms set forth in their communication.”. For the time being this ended the transac- The minutes of the several meetings of the tion whereby the plaintiffs were retained by board of directors at which these several the defendant to represent it in the negotia- resolutions were passed were formally aptions and litigation adverted to. Thus far proved at subsequent meetings. the transaction was simply one of retainer, If a copy of this resolution, with nothing whereby the defendant engaged the plaintiffs further, had been transmitted to the plainas counsel and paid them a retainer fee. tiffs, the defendant's unconditional acceptThe contract was a contract of engagement ance of the plaintiffs' offer to serve it upon and the consideration which bound the plain the terms stated would have made a.comtiffs to the defendant was the fee paid by the plete contract and the contractual transacdefendant to the plaintiffs. Up to this point tions between the plaintiffs and the defendnothing was said or done by either party ant would then have been, first, a contract respecting compensation for the services to of retainer for a fixed amount, and, second, be rendered in the matter in which the plain- a contract of services for a contingent tiffs had been retained.

amount. But when the secretary of the On July 2, 1913, the plaintiffs addressed to company forwarded a copy of this resolution the defendant the first communication that to the plaintiffs, upon the day following its appears, from the evidence, to have been adoption, he sent with it the following letter: made concerning compensation for services “Wilmington, Del., U. S. A., July 10, 1913. in the matter for which they had been en- "Messrs. Saulsbury & Morris, 907 Market St., gaged, and is as follows:

Wilmington, Del.-Gentlemen: In compliance

with the instructions contained in a resolution "July 2, 1913.

of the board of directors of this company passed “American Vulcanized Fibre Company, Wil- at their meeting of July 9th, I am inclosing mington, Del.-Gentlemen: On the 8th day of herewith certified copy of said resolution. April, 1913, by a resolution adopted by your

“Very truly yours, board, we, with Arthur J. Selfridge, Esq., were

“American Vulcanized Fibre Co., retained by and on behalf of your company to

"T. W. Campbell, Sec. represent it in negotiations with the personal “P. S.-It is understood that the $3,000.00 representative of the late president of your paid to you already by this company is part company, and in the prosecution of any claim of the fees contemplated by this resolution. or claims, action or cause, which may be necessary to obtain for your company proper resti- Though not appearing to be a corporate tution of any sum or sums which may be due act in the sense of a resolution of the board from the estate of the late president by way of of directors, this letter was sent to the plainaccounting or for a rescission of the contract by which such acquisition was made.

tiffs and received by them with the copy of "No compensation was fixed in said resolution the resolution, and was notice to the plainfor the services so to be rendered.

tiffs, at the instant the corporate act was “We have considered this matter and request that you adopt a resolution fixing our communicated to them, of an understanding fee for services under said resolution.

on the part of some one that the $3,000 al"Yours very truly, Saulsbury & Morris."

ready paid to them was a part of the fees On July 9, 1913, the plaintiffs again wrote contemplated by the resolution. Whether the defendant upon the subject of fixing that understanding was the understanding of compensation, stating the terms upon which the corporation, evidenced by an act contemthey would render the services for which poraneous with and of legal force equal to they had been engaged. Upon the same day, that of the resolution, was something of the board of directors of the defendant com- which, at that time, the court was not inpany passed a resolution, the preamble of formed. We therefore admitted the letter

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