Before L. HAND, CHASE and FRANK, Circuit Judges.
1. The Court below found that the parties to the Levisohn-Heirich retainer intended that any action on the claim should be brought in New York. The compensation proceedings could have been instituted nowhere else, and the Transit Corporation's principal office is located there. Levisohn's testimony as to where the parties contemplated the bringing of the action is so equivocal that the finding by the trial judge, who heard the testimony on that point, does not appear to us to have been "clearly erroneous."
If we assume that State law governs, pursuant to Dickinson v. Stiles, 246 U.S. 631, 38 S. Ct. 415, 62 L. Ed. 908, Ann.Cas.1918E, 501, and that the New York rule of Conflict of Laws therefore applies, pursuant to Klaxon Co. v. Stentor, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477, we reach the conclusion that the Illinois statute on which Levisohn bases his claim is irrelevant. In Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 19 N.E.2d 992, 995, the court said that where the parties have not otherwise agreed, "matters bearing upon the * * * interpretation and validity of contracts * * * are determined by the law of the place where the contract is made," while "all matters connected with its performance * * * are regulated by the law of the place where the contract * * * is to be performed." It then went on to say: "The formulation of these general principles has not removed uncertainty and doubt in their application. 'Interpretation' of a contract and its manner of performance are so intertwined that the courts often determine pragmatically the question of whether the law of the place where the contract was made or the law of the place where the contract by its terms is to be performed regulates particular matters which 'bearing upon the interpretation' of a contract are at the same time 'connected with its performance.' Perhaps pragmatic determination may in such cases be indicated by the nature of the problem, and the test whether one rule or the other produces the best practical result may be the safest guide in the search for the intention, actual or assumed, of the parties." Cf. Goodrich, Conflict of Laws (1927) 246.*fn2
We have found no decisions in New York relating to an agreement such as the one now before us. We think that the New York courts would hold that it is to be interpreted according to the New York internal "law" and not according to Illinois "law."*fn3 Whether, if we were free to do so, we would employ the same doctrine of conflict of laws is beside the point. Many decisions in that field of law are, in most jurisdictions, based upon fiction, including much talk about the presumed intention of the parties.*fn4 But whether we like it or not (assuming that "federal law" is not here applicable), we must follow what we believe to be the New York rule.
We arrive at the same conclusion if we regard the agreement as an assignment: It was not an assignment of a contract right but of an interest, by way of lien, in a claim arising from a tort,*fn5 and the assignee was to perform future services in New York. In those circumstances, we believe that the New York "law" governs.*fn6 Under the "law," Levisohn has no lien on the judgment recovered by Marceau, as Levisohn did not commence or prosecute any action on Marceau's behalf.*fn7
Consequently we need not decide whether Garrett v. Moore-McCormack, 317 U.S. 239, 63 S. Ct. 246, 87 L. Ed. 239,*fn8 over-rules Dickinson v. Stiles, supra, which held that a lawyer's lien attaching to a judgment obtained under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., is a matter to be governed by State law. For, if the Dickinson case were dead, and if "federal law" were applicable, we would reach the same result: Whatever the "federal law" as to lawyers' "charging liens" may be, we have no doubt that it does not confer such a lien upon a lawyer who has neither brought nor won the suit.
2. As there was substantial ground for concern by the plaintiff over its ability to pay the judgment to Marceau in full discharge of its liability, the Bringing of this suit under the Interpleader Act, 28 U.S.C.A. § 41(26), was justified. The plaintiff was therefore entitled to an injunction, and also to a small allowance for attorney's fees, $100 on this appeal, plus whatever, if anything, shall, on remand, appear to the Court below to be justified. New York Life Insurance Co. v. Miller, 8 Cir., 139 F.2d 657.
Plaintiff chose to retain the use of the $4500.00, and rather than pay the money into court, it gave a bond. Plaintiff is entitled to receive the cost of the premiums on that bond, but not to an order stopping the running of the interest against it.
Affirmed as to Levisohn; modified in part, affirmed in part, and remanded as to Great Lakes Transit Corp.
L. HAND, Circuit Judge (concurring).
If this appeal must be decided on the assumption that Dickinson v. Stiles, 246 U.S. 631, 38 S. Ct. 415, 62 L. Ed. 908, Ann.Cas.1918E, 501, still holds, I should be unable to concur. The only question then would be of the effect in Illinois of Marceau's retainer of Levisohn; and the law of that state imposed a lien upon Marceau's claim against the plaintiff from which Marceau could not have freed himself by dismissing Levisohn as his attorney. I can see no more difference than could Holmes, J., between such a lien and the assignment of an interest in the claim, except that the lien is imposed regardless of the intent of the parties. It is the general rule that the courts of another state will give that effect to an assignment that it has in the state where it is made (Restatement of Conflict of Laws § 350); and in New York that is certainly true when the contract is embodied in a document like a cheque, or share of stock, or a bond. Weissman v. Banque de Bruxelles, 254 N.Y. 488, 173 N.E. 835; Hutchinson v. Ross, 262 N.Y. 381, 391, 187 N.E. 65. Surely there is no reason to stop at such contracts, or to adopt a different rule when the transfer is of a claim based upon a tort. Moreover, it would seem that in the case of a lien imposed in invitum, the law of the place of retainer would be even more compelling.
Perhaps, therefore, the question of the creation and extent of the lien is independent of the contract of retainer in general; and, if it is, we need go no further. As to that I am, however, in some doubt, and arguendo I shall assume that the lien is to be regarded as merely an incident or term of the contract; and that, if the contract is to be throughout interpreted by the law of New York, the scope of the lien is to be also so interpreted. Upon that assumption the law of New York as to conflict of laws comes in question. Unless I misapprehend the decisions of that state, they do not differ from the now generally accepted doctrine (Restatement of Conflict of Laws § 332(f), § 346), that the interpretation of a contract depends upon the lex loci contractus, and not upon the lex loci solutionis. Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 19 N.E.2d 992; Zwirn v. Galento, 288 N.Y. 428, 43 N.E.2d 474. It is true that the law of New York, like that of many other jurisdictions, was long in confusion, as, for example, appears in Dyke v. Erie Railway Co., 45 N.Y. 113, 116, 6 Am.Rep. 43; but the confusion has grown less, and I doubt whether any jurisdiction, not already committed, would today follow any other rule than that at the lex loci contractus. Beale, Conflict of Laws, § 332.3. Moreover, I find it impossible to support any other rule without violating the assumption, underlying the conflict of laws: i.e., that the courts of other jurisdictions will confer and impose upon the parties, who come before them, rights and liabilities, defined as the law of the place where the relevant legal transaction occurred, defined the rights and liabilities which there arose. As we said in E. Gerli & Co. v. Cunard S.S. Co., 2 Cir., 48 F.2d 115, the parties can make agreements, but they cannot make contracts; only the law of the place where they agree can do that. Another state before whose court the parties come may, indeed, altogether disregard any rights and liabilities which arose in the state of the agreement, and substitute what it likes, for each state is a law unto itself, subject in the United States to the Constitution; but to do so, when the agreement does not offend the moral conventions of the forum, would violate the practise of civilized states. Guinness v. Miller, D.C., 291 F. 769, 770; The James McGee, D.C., 300 F. 93, 96.
On the other hand, people may, if they wish, declare that their promises shall be interpreted by any standard they choose to adopt in their agreement, including whatever interpretation the lex loci solutionis will put upon their words; and the lex loci contractus will ordinarily make such a stipulation as much a part of their contract as any other stipulation. But that does not mean that the lex loci solutionis, ex proprio vigore, ever has anything to do with the interpretation of the contract. It is true that at times courts will look to that law to decide whether the promisor's performance has been in accord with his promise (Restatement of Conflict of Laws § 358), and that is inconsistent with what I have just said, because it is apparent that that process involves a definition of what the promise means. It is in my judgment because of this inconsistency in theory that the decisions have been so confused, are so confusing; and I believe that the explanation to be that courts have unwittingly applied the doctrine I suggested a moment ago. In other words, I think that, so far as the lex loci solutionis has been used to determine whether the promisor's performance corresponds with his promise, it has been because the courts have implied a term in the contract ...