attached as Exhibit "K" to the complaint: "* * * and, independent of said undertaking, the American Commissioner, exercising his judgment, and in accordance with the authority granted him by Sec. 9 of the 'Settlement of War Claims Act of 1928' fixes fifty per cent (50%) of the recovery as a reasonable fee, as defined by said Act, for services and disbursements in connection with the proceedings in this case before the Mixed Claims Commission and with the preparation therefor, and the application for payment and payment."
It would be difficult to formulate with greater clarity a finding or holding that the 50 per cent awarded to the defendant was for his fee. Note again the words of the American Commissioner at p. 64, supra: "* * * It can hardly be doubted that the total fee of 50 per cent of the Lehigh recoveries would have been fair and reasonable had the Black Tom case been won and Lehigh collected on its award in 1935 or 1936. Certainly this was the opinion held by Lehigh when it made its March 9, 1933 agreement with Mr. Peaslee (with which agreement Lehigh was perfectly satisfied in December, 1936)."
Throughout his final opinion, in various ways and phraseology, the Commissioner makes it patent that he is awarding a 50 per cent fee to be paid by the plaintiff to the defendant. That the Commissioner was aware that the defendant had contracted to pay part of his fee to others does not affect the quantum of the award against the plaintiff and in favor of the defendant.
The plaintiff is not correct in its contention that the defendant has no personal interest in the $422,000.00 claimed in this motion for summary judgment. He will either retain this money or pay it to others, it being part of his fee. If he retains it, it will be because he has the right to do so; if he pays it to others he will pay it presumably because of a liability to do so. In neither event has the plaintiff the right to demand to do those things for the defendant.
Even if the defendant ultimately pays out all the $422,000.00 on commitments, he has a personal interest in seeing that it is so paid, for he thus relieves himself of a liability.
The gravamen of the complaint, taken in its entirety, is that the Commissioner, in fixing the fees, exceeded his authority and jurisdiction. But it is to be noted that that contention is not involved in the present motion for summary judgment, which does not, as a matter of fact, for the purposes of the motion, question the jurisdiction or propriety of the Commissioner's finding, but instead relies upon it, if only arguendo; and it is by virtue of the opinion and findings that the plaintiff contends that the $422,000.00 should be awarded to it at once.
Everything else apart, this motion for summary judgment certainly does not meet the standards of clarity and certitude as to facts and law which should exist before a summary motion is granted. The dismissal of this motion does not preclude the plaintiff from eventual recovery if it can establish a basis therefor upon trial. This cause is destined for trial in any event, if only because of the order I have made dismissing the defendant's motion for summary judgment; and the matter involved in the plaintiff's motion may be disposed of, together with any others arising, when the case is tried.
Two motions remain for consideration.
The defendant has filed a cross claim in which he asks damages consequent upon plaintiff's action in continuing litigation "respecting the fixing of fees in the Black Tom claim without adequate basis of legal rights and based upon demands not justified in law", on the ground that because of such action the defendant has been delayed in, and deprived of the use and enjoyment of, his share of the proceeds of the recovery, and because he has been obliged to incur heavy expenses for counsel fees and disbursements.
To this cross claim the plaintiff has filed a motion to dismiss or for a more definite statement; and the defendant has filed a motion for summary judgment on his cross claim or for a reference to compute damages.
The motion for a more definite statement is granted; the other motions are dismissed.
I am of the opinion that the cross claim, which avers damages in the amount of $100,000.00, does not, in the first place, sufficiently show what litigation the plaintiff is alleged to have "continued"; nor does it show how the claimed amount of $100,000.00 is computed or made up.
For these reasons the defendant may not be granted summary judgment upon his cross claim; and for the same reasons the plaintiff is entitled to a more definite statement.
On the other hand, the claim upon its face does not show clearly such lack of validity as to entitle the plaintiff to summary judgment thereupon. As appears in the defendant's memorandum of law concerning the cross claim, he proceeds upon the theory that the filing of the plaintiff's complaint was motivated, not by a desire to recover monies from the defendant, but by the intent of the directors of the plaintiff company to justify themselves to the stockholders or creditors of said company, who might attack or have attacked the action of the company in making it liable for an allegedly excessive fee to the defendant herein. The true situation will doubtless be disclosed at the trial, at which time a disposition may be made upon the merits.
And Now, this 8 day of October, 1942, for the reasons stated, I make the following orders:
(1) The defendant's motion for summary judgment is denied;
(2) The plaintiff's motion for summary judgment for $421,963.51 is denied;
(3) The defendant's motion for summary judgment or for a reference to compute damages on cross claim is denied;
(4) The plaintiff's motion to dismiss the cross claim or for a more definite statement is denied insofar as it seeks a dismissal of the cross claim; it is granted insofar as it asks for a more definite statement.
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