Syllabus by the Court.
1. A
petition for a money rule by a client against an attorney at
law is amendable.
2. The
court did not err in overruling the demurrers to the original
petition for the rule as finally amended by the third and
last amendment.
William
Richardson as a client brought a money rule against his
attorney G. Seals Aiken in the Fulton Superior Court. The
movant's motion for a rule is quoted in toto and was as
follows: '1. That the said G. Seals Aiken is an attorney
at law, practicing in this Court, and resides in said State
and County. 2. That said Aiken has in his hands the sum of
$2,283.33 which he should account for and pay over to movant
but which after demand he fails to pay to movant. 3. Movant
shows that on May 9th, 1947, his wife while driving
movant's automobile, collided with an automobile driven
by one W. E. Coker at St. Charles Avenue and Barnett Street
in the City of Atlanta, she being severely injured and
movant's car wrecked. 4. Thereafter there was filed in
this Court Suit No. A-554, on behalf of movant against said
Coker and West View Corporation, said suit being filed by
said Aiken as attorney for movant. 5. Although movant had not
authorized the filing of said suit
nevertheless on learning of it, he did acquiesce in its
having been filed and did acquiesce in said Aiken's offer
to represent movant for a fee to Aiken of one-third of the
amount which might be received in settlement of movant's
claim against Coker and West View Corporation. 6. After said
case had been pending for nearly two years, movant insisted
in writing that Aiken seek to effect a settlement with the
attorney for the insurance company defending said suit. 7.
Within a few days thereafter said Aiken presented to movant a
release for him to sign releasing Coker and West View
Corporation from movant's claims against them. 8. The
consideration to movant, recited in said release, was
$3,425.00.9. Movant signed said release and delivered it to
said Aiken. 10. As movant is informed and believes and
alleges the fact to be, a draft on said insurance company was
delivered to said Aiken for the sum of $3,425.00, payable
jointly to movant and to said Aiken as an attorney, which
draft Aiken collected. 11. Upon said insurance draft there
was written the indorsement William Richardson, as movant is
informed and believes. 12. The indorsement William Richardson
on said draft was not written thereon by movant, nor
authorized by him, and movant has never seen said draft. 13.
Movant charges that the indorsement William Richardson, which
purported to be movant's signature, was written thereon
by the defendant Aiken. 14. Approximately one week after said
Aiken had received the insurance draft for $3,425.00, movant
made a written request by registered mail to Aiken for the
sum so collected, less Aiken's fee as an attorney at law
of one-third thereof. Aiken received said registered letter
personally. 15. A copy of said letter is hereto attached,
marked Exhibit A and made fully a part hereof. 16. That
following said demand, Aiken sent to movant his check, not
for two-thirds of said $3,425.00, but for less than half of
said sum, namely, the sum of $1,591.33, said Aiken retaining
the sum of $1,833.67. 17. A photostatic copy of said check
for $1,591.33 is hereto attached, marked Exhibit B, and made
fully a part of this motion. 18. Said Aiken gave no
explanation for his having retained more than half of the
$3,425.00 so collected by him, the said Aiken, but wrote to
movant
a letter enclosing said check, as follows: Enclosed herewith
you will find my check for $1,591.33 in full
payment and satisfaction of the amount due you out of the
settlement of your case and all your claims against W. E.
Coker and West View Corporation. 19. Said check was received
by movant on Saturday, May 21st, 1949, and was on Monday May
23rd, 1949, returned to said Aiken. 20. Said check was
returned to said Aiken accompanied by a further demand for
payment of movant's two-thirds of said sum of $3,425.00,
which demand in writing was delivered to Aiken in person by
movant's agent and attorney, Madison Richardson, as
movant is informed and believes. 21. A copy of said written
demand is hereto attached marked Exhibit C, and made fully a
part hereof. 22. That no further communication has been had
from said Aiken and no payment of any kind has been made or
tendered to him, except as above set forth. Wherefore, movant
prays: (Movant prays customary prayers for relief
sought).'
Exhibit
A to the motion was as follows: '38 Peachtree Circle,
N.E., Atlanta, Ga. May 19th, 1949 Mr. G. Seals Aiken, 1105-6
First National Bank Bldg., Atlanta, Ga. My dear Sir: About a
week ago I handed to you signed release for $800.00 and
$3425.00 in settlement of the claims of Mrs. Richardson and
myself against Mr. Coker. I suppose you got the money from
the insurance company immediately, but we have not received
from you our two-thirds up to this time. Last October you
told me that you had expenses of $467.00 in connection with
these cases, and you had me to sign an agreement that if you
could settle for $4550.00, the amount of the two judgments,
you would be reimbursed for the expenses amounting to
$467.00. While the settlement is less than $4550.00 I do not
want you to lose any out of pocket expenses which are
properly chargeable to Mr. Richardson or to me. It will be
satisfactory to me for you to deduct from my two-thirds of
$3425.00 any out of pocket expense you paid which is properly
chargeable to either of us, provided you will give me an
itemized statement showing each such item, the amount paid,
the person to whom paid and the purpose for which paid.
Repeatedly you have mentioned expenses you have paid and I
have asked you for an itemized statement but have never
gotten it from you. The amounts we get are much smaller than
the amounts you told us positively you could get for us and I am disappointed in the way in which the
case has been handled. However, both of us want to get this
thing over with and get the money due us. Please let us have
our checks right away. Yours very truly, (signed) Wm.
Richardson.'
Exhibit
B was a copy of the check from G. Seals Aiken to William
Richardson mentioned in the motion for a rule. Exhibit C to
the motion was as follows: 'Atlanta, Ga., May 23, 1949
Mr. G. Seals Aiken, Attorney at Law, First National Bank
Bldg., Atlanta, Georgia. Dear Sir: On or about May 13th,
1949, there was paid to you as attorney at law representing
me, in settlement of claim set forth in Suit No. A-554,
William Richardson vs. Coker et al. in Fulton Superior Court,
the sum of $3 425.00. Of this amount, you are entitled to a
fee of one-third and I am entitled to the balance amounting
to $2283.33. On May 19th, I received by mail the attached
check by you to my order in the sum of $1591.33, tendered in
full payment. This amount is wholly unacceptable and your
check is herewith returned. You are hereby notified that in
default of payment to me of said sum of $2,283.33, I shall
claim the same with interest thereon at the rate of 20 per
cent, and I shall proceed against you in the manner provided
by law. You are notified and required to make payment of said
sum of $2,283.33 to my attorney and agent, Madison
Richardson, 1516 First National Bank Building, Atlanta,
Georgia. Yours very truly, (signed) William Richardson.'
This
original motion was filed on May 27, 1949. On June 6, 1949
movant filed the following amendment to his original motion
'23. The oral agreement that the defendant should be paid
as his attorney's fee one-third of the recovery was put
in writing by him in a letter written to movant on October
13, 1948, after the three trials had in the cases of movant
and his wife were completed. A copy of said letter is hereto
attached, marked Exhibit D and
made fully a part hereof. 24. At the same time defendant
presented to movant an agreement to be signed by movant,
agreeing to the fee arrangement proposed in defendant's
letter. Movant did sign the original and he was furnished
with a copy of the agreement so signed by movant. A copy of
the agreement was handed to movant by defendant and the same
is hereto attached by a copy thereof, marked Exhibit E, and made fully a part hereof. 25. That in
May, 1949, defendant received from the insurance company a
draft in the sum of $800.00 in settlement of Mrs. William
Richardson's claim against Coker et al; that defendant
sent to her his check for $533.33, having deducted from the
$800.00 one-third thereof as defendant's attorney's
fee.' Exhibit D attached thereto was as follows:
'October 13, 1948. Mr. William Richardson 38 Peachtree
Circle, N.E. Atlanta, Georgia. In re: Mrs. William (Helen
Camp) Richardson -vs- W. E. Cower and West View Corp. A-308;
William Richardson -vs- W. E. Coker and West View Corp. Dear
Bill: Confirming our conversation in person today at my
office, please be advised as follows: As you know we have a
verdict for $800.00 in favor of Mrs. Richardson. I filed a
motion for new trial, had the record written out by the court
reporter, paid for it, then had that record put in the form
of a brief of evidence and paid for it, then prepared and had
written out and approved by the court a detailed amended
motion for new trial. I then prepared and had written out and
submitted to the court a written brief and argument in behalf
of the motion for new trial. This was overruled by the trial
judge, the father of one of the opposing counsel, as you
know, I then prepared and had written out a bill of
exceptions and amended bill of exceptions carrying this case
to the Court of Appeals. Since...
