cient consideration and can be enforced against him, although he might be able to prove that nothing was in fact due from him." It is true that in that case the agreement was in writing, but the strict rule as as to accord without satisfaction in the case of a conceded debt obtains where the agreement is in writing. Kromer v. Heim, supra.

The ground, therefore, on which the decisions in the Wehrum and Dunham Cases proceeded, is that there may be a valid executory agreement to compromise a disputed claim, which, though unexecuted, is binding on the parties and determines their rights. The distinction between the two classes of cases is well illustrated in Flegal v. Hoover, 156 Pa. 276, 27 Atl. 162. There the Supreme Court of Pennyslvania said: "This case was unfortunately tried on a wrong basis throughout. It was assumed that the agreement of May, 1892, was an accord, and as its terms had not been fully carried out, that there had been no satisfaction, that the agreement was, therefore, inoperative, and the parties were remitted to their rights and liabilities under the original contract. This was a radical error. The agreement of May, 1892, was a compromise of disputed rights. The defendants claimed that the plaintiff was violating the contract in such manner as to entitle them to rescind, and they had in fact taken possession of the land a short time before by force. The plaintiff, on the other hand, claimed that he was pursuing his contract rights, and he had in turn ousted the defendants by force from the land. The parties then came together, agreed upon a settlement, put its terms in writing, which was signed by both, and partly carried out. Such an agreement is not an accord, but a compromise, and is as binding as any other contract." The agreement in the present case was not tentative, but specific and final. The defendant agreed to pay, and the plaintiff agreed to receive, a specific sum at a specified time and place. Had the defendant defaulted in the performance of his agreement, the plaintiff's assignor could have sued on his promise, regardless of the merits of the claim under the original contract. Equally the defendant may hold the plaintiff's assignor to the agreement.

The order of the Appellate Division should be reversed, the plaintiff's exceptions overruled, and judgment directed to be entered on the directed verdict at the Trial Term, with costs to the appellant in both courts.

HAIGHT, J. (dissenting). The defendant had purchased through H. Schmidt, the plaintiff's assignor, certain premises on Broadway and Lafayette Place, in the city of New York, which he was endeavoring to sell. Growing out of such purchase the parties had entered into a written agreement, which, so far as is material herein, provided that the defendant agreed to pay Schmidt $8,600 upon the consummation of the resale of the premises.

Thereafter, and in October, 1903, Schmidt retained one Levy, a lawyer, to negotiate with the defendant for a satisfaction and surrender of this agreement. The negotiations continued until the 23d day of November, when the defendant told Levy that he would pay $2,500 to Schmidt and $250 to Levy for his counsel fees, in settlement and for a release of the contract in question. This offer was reported to Schmidt and his attorney was authorized to accept it, who thereupon arranged to have the matter settled at his office on the 25th day of November, at 3 o'clock in the afternoon. At that time the defendant appeared at Levy's office with two checks, one for $2,500 and the other for $250, ready to carry out the settlement of the claim; but Schmidt did not appear or furnish a release of the defendant from his aforesaid agreement. Prior to this the defendant had entered into negotiations for a sale of the premises to Wanamaker, and such negotiations had proceeded to such an extent that the terms had been agreed upon and duplicate contracts drawn, which were signed by the defendant on the 24th day of November and then transmitted to Wanamaker, who signed them on the 25th and returned to the defendant his copy about a quarter past 3 in the afternoon, within a few minutes after the failure of Schmidt to appear and close the transaction on his part.

The question presented upon this review is as to whether the negotiations for a settlement that had taken place between plaintiff and the defendant had ripened into a completed contract, so that a novation had taken place and the new contract substituted for the old, or whether the negotiations had proceeded to the extent only that their minds had met upon the terms with the understanding that the settlement by the payment of the money and the delivery of the release was to take place on a future day; in other words, that there was an accord executory without satisfaction. I think the undisputed evidence in this case, even adopting the most favorable view that can be taken thereof for the defendant, brings it within the latter rule of an accord executory-a meeting of the minds of the parties upon the terms, with the satisfaction or payment postponed until a future time. The defendant had offered Schmidt $2,500 for his claim under the contract. Schmidt had said that he would accept it, and the defendant was to pay over the $2,500, and Schmidt was to execute and deliver a release of his claim on the Wednesday following, at the hour designated. The payment of the money and the delivery of the release were to be concurrent acts. The satisfaction, therefore, was executory. It was postponed until the future. There had been simply an accord of their minds upon the terms of the settlement. It was, therefore, an uncompleted contract, one which could not be enforced by action or substituted for the existing contract. The rights of the par

ties herein cannot be stated more forcibly by me than to quote from Justice Barrett in the case of Panzerbeiter v. Waydell, 21 Hun, 161. In that case one of the parties had made a claim against the other and action had been brought thereon. Negotiations were then undertaken for a settlement and the terms had been agreed upon, but the payment of the claim and the execution of the release and the discontinuance of the action were to be made on a future day. The learned justice says with reference thereto: "There was no acceptance of the discontinuance and release, nor were they even left with the defendants or their attorneys. There was, in fact, no intention to surrender these documents without concurrent payment.

This

is a plain case of an accord executory; such an agreement would have been no bar to the original suit unless executed by the acceptance of the $150. * * The promise to discontinue and release was not binding upon the plaintiff. Consequently the defendants were without a consideration for their promise. In the case of mutual and concurrent promises there must be reciprocity of obligation." Mitchell v. Hawley, 4 Denio, 414, 47 Am. Dec. 260; Russell v. Lytle, 6 Wend. 391, 22 Am. Dec. 537; Daniels v. Hallenbeck, 19 Wend. 408; Tilton v. Alcott, 16 Barb. 598; Day v. Roth, 18 N. Y. 448; Kromer v. Heim, 75 N. Y. 574, 31 Am. Rep. 491; Brennan v. Ostrander, 50 N. Y. Super. Ct. 426; Noe v. Christie, 51 N. Y. 270; Osborn v. Robbins, 37 Barb. 481.

I do not understand the learned Chief Judge to question the rule I here invoke. He, however, contends, if I understand his opinion correctly, that the claim existing between Schmidt and the defendant was an unmatured claim, and for that reason the parties had the right to agree upon the compromise of it, and that it was not subject to the rule that, where a payment of a portion of an undisputed claim had been made and receipt given therefor in full, it did not conclude the party from recovering the balance due, as stated in the case of Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539. I quite agree to this. I concede that the parties may agree to surrender and compromise an unmatured claim. They may also agree to compromise and settle a disputed claim. What I do not agree to is that a different rule obtains with reference to the settlement of a disputed claim from that of an unmatured claim. Where the minds meet upon the terms of a settlement of a disputed claim and the delivery of the release, and the payment is postponed to a future date, it is but an accord executory, and not a complete settlement or agreement, for the reason that no consideration passes between the parties at the time. It is but a mutual understanding as to terms, but a failure to complete by satisfaction. The same is true with reference to the settlement of an unmatured claim. Hearn v. Kiehl, 38 Pa. 147, 80 Am. Dec. 472.

Under the provision of the contract the whole of the $8,600 became due and payable from the defendant to Schmidt upon the consummation of the resale of the premises. This took place within a few minutes after 3 o'clock of the day that was fixed for the settlement between the defendant and Schmidt. It is quite possible that the defendant had reason to believe that this sale I would be effected when he made his offer to compromise with Schmidt. Schmidt was not advised of the fact that negotiations for a sale were pending between the defendant and Wanamaker. But, in view of the findings in this case, I incline to the view that no question of law arises with reference to this branch of the case which we can consider upon this review.

I favor an affirmance of the order of the Appellate Division.

EDWARD T. BARTLETT, WERNER, and HISCOCK, JJ., concur with CULLEN, C. J. GRAY, J., concurs with HAIGHT, J. O'BRIEN, J., absent.

Ordered accordingly.

(185 N. Y. 520)

MOREHOUSE v. BROOKLYN HEIGHTS R. CO. et al. (Court of Appeals of New York. June 21, 1906.)

1. SUBROGATION-DEFENSE BY SURETY-UN

CONSCIONABLE CONTRACT.

Plaintiff, an attorney, agreed to prosecute an action for N. against defendant for 50 per cent. of any recovery. With notice of plaintiff's lien for said 50 per cent., but in good faith, defendant paid to N. the amount for which settlement had been made, on the understanding that N. would settle with plaintiff for his services. Held, in an action to enforce the attorney's lien, that, defendant having by the payment to N. become in effect surety for the payment to plaintiff for his services, the defense that the contract between plaintiff and his client was unconscionable, and therefore void, was available to defendant by way of subrogation.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Subrogation, §§ 96-105.] 2. ATTORNEY AND

CLIENT-COMPENSATION

DIVISION OF RECOVERY.

Whether an agreement that an attorney shall have 50 per cent. of any recovery for prosecuting an action is unconscionable, and therefore void, depends on the circumstances of each case.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 351.] 3. TRIAL-NECESSITY OF FINDINGS-MISTRIAL. Where, in an action in which the defense, available to defendant, that a contract was unconscionable, and therefore void, is interposed, and evidence bearing thereon is produced, failure to find thereon, the court court merely refusing to make findings for defendant, results in a mistrial; Code Civ. Proc. § 1022, requiring that the decision state separately the facts and the conclusions of law and direct the judgment to be entered thereon, and refusal to find the fact for defendant not being equivalent to a finding against the fact.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 940-945.]

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Wilmot L. Morehouse against the Brooklyn Heights Railroad Company and another. From a judgment of the Appellate Division (92 N. Y. Supp. 1134, 102 App. Div. 627), unanimously affirming a judgment (89 N. Y. Supp. 332) entered on a decision for plaintiff, defendant company appeals. Reversed, and new trial granted.

Charles L. Woody and George D. Yeomans, for appellant. Wilmot L. Morehouse, pro se.

HAIGHT, J. This action was brought to recover of the defendant Jonas Nathan for services rendered to him by the plaintiff as an attorney at law in the commencement of an action for Nathan against the Brooklyn Heights Railroad Company, and to enforce plaintiff's lien against the railroad company. On the 19th day of February, 1902, the defendant Nathan received personal injuries on the defendant's railroad while a passenger in one of its cars, and thereupon he entered into a written agreement with the plaintiff to prosecute an action therefor, for which he agreed to pay the plaintiff 50 per cent, of whatever might be recovered in the action, by way of settlement or otherwise, together with the costs, allowances, and disbursements thereon as compensation for his services. Shortly thereafter the plaintiff did bring an action against the railroad company by the service of a summons and complaint, which action was subsequently settled by the defendant Nathan; the railroad company paying to him the sum of $2,000. The trial court has found as a fact that the settlement so made by the railroad company was honest and binding upon the plaintiff, but that the plaintiff at the time of serving the summons and complaint had also served upon the railroad company a notice of his lien for 50 per cent. Judgment was thereupon awarded against the defendant for the sum of $1,000, with the provision that execution first issue against the defendant Nathan, and, if it should be returned unsatisfied, then the plaintiff have execution against the defendant railroad company. The defense interposed by the railroad company was that the contract between Nathan and the plaintiff was unconscionable, and therefore illegal and void. Most of the evidence taken upon the trial bore upon this issue. At the conclusion of the evidence the trial court rendered a decision in writing, containing findings of fact and conclusions of law, to which reference has already been made, but containing no finding either way upon the question as to whether the contract was unconscionable and illegal and void. The defendant had submitted requests to find bearing upon this issue, to the effect that the contract was unconscionable, which requests were marked "Refused." In disposing of the case the trial judge filed his opinion,

in which he stated that the claim of the defendant that the contract was unconscionable, and would not, therefore, be enforced by the court, was not available to the defendant railroad company, for the reason that, if the company still had the $2,000 in its possession, it could not raise such a question, as it would be a matter between the attorney and client only, and he did not think the company was in any better position after having paid the money in its own wrong. Exceptions were taken to the findings of fact and conclusions of law of the trial court, and to its refusals to find as requested.

I think the defense interposed by the defendant company was available to it, and that it should have been determined either one way or the other by the trial court. It is true the defendant company paid out its $2,000 in settlement of the action brought against it; but this, as the trial justice has found, was honestly done, and consequently was not for the purpose of defrauding the plaintiff out of his compensation. It is true that this payment was made after notice of the lien had been served by the plaintiff upon the company. How the company came to make the payment after such notice is not disclosed by the record. Whether it was overlooked or forgotten, we are not advised. The company, however, has honestly settled the case and paid the money to Nathan, as it had the right to do, upon the understanding that he would settle with his attorney for the services he had received. FischerHansen v. Brooklyn H. R. R. Co., 173 N. Y. 492, 60 N. E. 395. Nathan thereby became primarily liable to pay the plaintiff herein for his services in the litigation, and the defendant company only became liable to pay in case collection through execution against Nathan could not be made. In effect it became his surety. Such is the judgment entered herein. It therefore appears to me that the defendant company became subrogated to the rights of the defendant Nathan, and had the right to avail itself of any defense to the action that Nathan had. In the case of Pease v. Egan, 131 N. Y. 262-272, 30 N. E. 102, Peckham, J., in commenting upon the general rule of subrogation, refers to a statement of Chief Justice Marshall to the effect "that equity would clothe the party thus paying with the legal garb with which the contract he has discharged was invested, and it would substitute the party paying to every equitable interest and purpose, in the place of the creditor whose debt he has discharged." And again, later on, after referring to the cases of Gans v. Thieme, 93 N. Y. 225, and Arnold v. Green, 116 N. Y. 566, 23 N. E. 1, says with reference to them that they are "evidences of the rule that no contract need subsist upon which to base the right of subrogation, and that it is a remedy which equity seizes upon in order to accomplish what is just and fair between the par

ties." In Mathews v. Aikin, 1 N. Y. 595, Johnson, J., says: "It is a general and well-established principle of equity that a surety, or a party who stands in the situation of a surety, is entitled to be subrogated to all the rights and remedies of the creditor whose debt he is compelled to pay." Hinckley v. Kreitz, 58 N. Y. 583; Johnson v. Zink, 51 N. Y. 333; Lord v. Tiffany, 98 N. Y. 412, 50 Am. Rep. 689; Wheeler v. Sweet, 137 N. Y. 435, 33 N. E. 483.

Of late years the subject of attorneys' fees and their manner of procuring contracts of retainer, especially in negligence cases, have attracted the attention of both the public and the courts. The charges made in some cases have been exorbitant, if not scandalous, and have tended in a measure to bring the profession into disrepute. It is contended that a claimant who is poor and unable to pay his attorney in cash ought to be permitted to contract to pay a portion of his claim to his attorney, in order to procure his services. The validity of such contracts is not questioned. It is only where the attorney has taken advantage of the claimant, by reason of his poverty or the surrounding circumstances, to extort an unreasonable and unconscionable proportion of such claim that it is condemned. The federal courts have recently, in two instances, characterized a contract of retainer giving to the attorney 50 per cent. of the recovery as unconscionable. Herman v. Met. St. Ry. Co. (C. C.) 121 Fed. 184; Muller v. Kelly, 125 Fed. 213, 60 C. C. A. 170. The Appellate Division in the First Department has also denounced such contracts. The contracts. The question, however, as to whether such a contract is unconscionable, is one of fact, depending upon the character of the claim and the amount of services to be rendered in prosecuting it to judgment. An agreement to pay an attorney one-half of the recovery, where the action was to recover a penalty of $50, would not by any person be considered to be improper; but, if it was for $50,000, it might be considered quite improper. So that the mere fact that the attorney under the agreement was to receive one-half does not render it unconscionable, unless it appears from the evidence that it was induced by fraud, or, in view of the nature of the claim, that the compensation provided for was so excessive as to evince a purpose on the part of the attorney to obtain an improper or undue advantage over his client. Matter of Fitzsimons, 174 N. Y. 15, 66 N. E. 554. 'As we have seen, the defendant in the case under consideration interposed the defense that the contract in this case was unconscionable, and therefore void, and evidence was produced upon the trial bearing upon this defense. The defendant company, therefore, had the right to have that issue determined by the trial court. This, as we have seen, the trial judge refused to do, for the reason,

as he states in his opinion, that the defense was not available to it. It is suggested, however, that the opinion cannot be considered in determining the effect that should be given to the refusal to find the defendant's requests, and that the refusal should be construed as a determination on the part of the trial court of the issues so presented for its decision. While we require the opinions written to be printed and made a part of the record, they do not form a part of the judgment roll. We do not, therefore, look to the opinions for the purpose of determining the contents of an order, finding, or judgment, or its meaning. We only examine the opinions for the purpose of ascertaining the arguments made and the reasons given in support of the rungs and determinations made by the court whose order or judgment is under review. Salmon v. Gedney, 75 N. Y. 479-481; Tilton v. Beecher, 59 N. Y. 176-182, 17 Am. Rep. 337; Fisher v. Gould, 81 N. Y. 228; Dibble v. Dimick, 143 N. Y. 549-554, 38 N. E. 724; Koehler v. Hughes, 148 N. Y. 507, 42 N. E. 1051.

Under the practice as it existed prior to 1894, a party could submit to the trial court, or referee, requests to find, and the court or referee was empowered to mark upon the margin his determination as to each request. This he either filed or returned to the attorney presenting the request, and such attorney might file an exception to any refusal to find as requested and present the same for review before an appellate tribunal. But the provision of section 1023 of the Code of Civil Procedure authorizing this practice was repealed in the year stated, and was not re-enacted to take effect until September 1, 1904. So that in the meantime there was no provision of the Code authorizing requests to find, or requiring the court to pass thereon, or of allowing parties to take exceptions to refusals as requested. The requests to find in this case were presented during this interval, and it consequently follows that the court was not required to make any of the findings requested. But it is said that the trial court did pass upon the requests by refusing them. Very true, he marked them all "Refused." Why he refused them he did not state. He properly could have refused them for the reason that the requests were not authorized by the Code, and the rulings made thereon had no force or effect, inasmuch as they were not subject to an exception or to a review on appeal. But, assume that the provisions of section 1023 of the Code had been re-enacted and were in force, and that an exception could be taken to the rulings made upon request. and that such exception could be reviewed on appeal; even then a refusal to find a fact requested is not equivalent to an affirmative finding to the contrary. If it were, a judgment might be based upon a decision made up wholly of refusals, thus completely

nullifying the plain provisions of section 1022 of the Code, which require that the decision must state separately the facts and the conclusions of law and direct the judgment to be entered thereon. A judgment, therefore, must be based upon facts found, not facts refused. This precise question was considered by this court in the case of Galle v. Tode, 148 N. Y. 270-277, 42 N. E. 673. The opinion is as follows: "It is contended on behalf of the respondents that the defendants Levi and Materne were parties and privies to the fraudulent intent of Tode and Wulling. There is, however, no direct finding to that effect. A finding was requested that the defendants Levi and Materne had no knowledge of the intent of Tode and Wulling to defraud their creditors and the request was refused. But the refusal to find a fact is not tantamount to a finding against a fact, unless the intention of the court to be so understood is clearly apparent. The refusal to find may rest upon other considerations. The evidence may not be regarded as satisfactory either for or against, or the mere fact may not be regarded as material in the determination of the controversy." In the case of Meyer v. Amidon, 45 N. Y. 169171, the action was founded upon fraud and deceit. The referee had found that the representations made by the defendant were false, that the plaintiffs were induced thereby to give credit, and that damages ensued therefrom. He did not find that the representations were fraudulent, nor that the defendant believed or had reason to believe when he made them that they were false, nor that he assumed or intended to carry the impression that he had actual knowledge of their truth. He did not find that the defendant had any intent to deceive or defraud the plaintiffs. The defendant requested the referee to find that the representations were made without fraud. The referee refused so to find, otherwise than as contained in his findings of fact. It was held that the findings did not establish a cause of action against the defendant, nor sustain the conclusions of law found by the referee; that the refusal of the referee to find that the representations were made without fraud and without intent to deceive would not be equivalent to a finding that they were made with fraud and intent to deceive. See, also, Lawrenceville Cement Co. v. Parker, 39 N. Y. St. Rep. 864, 15 N. Y. Supp. 577. I am, therefore, of the opinion that the failure of the trial court to find upon the issue so raised by the pleadings and the evidence given upon the trial resulted in a mistrial. Miller v. N. Y. & North Shore Ry. Co., 183 N. Y. 123, 75 N. E. 111; Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302, 76 N. E. 4.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HISCOCK, and CHASE, JJ., concur. GRAY, J.. absent.

Judgment reversed, etc.

(167 Ind. 553)

DONALDSON et al. v. STATE ex rel. TAYLOR, Atty., Gen., et al. (No. 19,798.)1 (Supreme Court of Indiana. June 8, 1906.) 1. DOMICILE PRESUMPTIONS PRESUMPTIONS OF FACT. The presumptions that a man is domiciled where he is found unless he is shown to be there for a temporary purpose, and that on the return of an alien to his domicile of origin, his original domicile reverts, and that in doubtful cases the original domicile is considered the true one, are not presumptions of law, but presumptions of fact only.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Domicile, § 36.]

2. TRIAL-FINDINGS OF COURT-FAILURE TO. FIND ON PARTICULAR QUESTIONS-EFFECT. Where a special finding is silent on a material point, it is deemed to be found against the one having the burden of proof. [Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, § 945.]

3. DOMICILE-EVIDENCE-PRESUMPTIONS.

Where, in an action to recover as escheated property land of which an alien died seised, the court found that the alien, a native of Scotland, emigrated to the United States in 1861 and became and remained a bona fide resident thereof until 1896, when he returned to Scotland, where he remained until his death two years later, and that it was not known whether he intended to return to the United States on his returning to Scotland, the court could not presume as a fact that he was a resident of Scotland at the time of his death, so as to deprive his alien heirs from claiming interest in the land.

THEORY OF CASE IN

4. APPEAL-REVIEW - THEORY TRIAL COURT.

Where an action to recover as escheated property land of which an alien died seised was tried on the theory that it was necessary to prove, in order to recover, that the owner was, at the time of his death, a nonresident of the United States, it could not be urged on appeal that the state was entitled to recover without proof of that fact, as the theory on which a case is tried must be adhered to on appeal.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1053-1061.]

On petition for rehearing. Rehearing granted, and judgment reversed, with instructions to grant a new trial.

For former opinion, see 67 N. E. 1029.

MONKS, J. This action was brought by the state against appellants and others to have certain real estate in Lawrence county adjudged the property of the state on the ground that the same had been escheated to the state; said defendants claiming to own said real estate as the heirs of George Donaldson, deceased. The court made a special finding of facts and stated conclusions of law thereon, upon which judgment was rendered in favor of the state.

1 Rehearing denied.