B. T. Clayton v. C. G. Martin, (No. 6639)

• Decision Date: 11 February 1930
• Docket Number: (No. 6639)
• Citation: 108 W.Va. 571
• Court: West Virginia Supreme Court
• Parties: B. T. Clayton v. C. G. Martin

108 W.Va. 571

B. T. Clayton

v.C. G. Martin

(No. 6639)

Supreme Court of Appeals of West Virginia.

Submitted February 5, 1930.

Decided February 11, 1930.

Attorney and Client Damages of Attorney Employed on Contingent Fee Basis for Discharge Without His Faidt, is Value of Services Rendered, Not Agreed Contingent Fee; Absent Evidence of Reasonable Value of Services of Attorney Employed on Contingent Fee, no Recovery Can be Had for Discharge Without His Fault.

Where an attorney has been discharged, without fault on his part, from further services in a suit just begun by him under a contract for payment contingent upon successful prosecution of the suit, his measure of damages is not the contingent fee agreed upon, but the value of his services rendered; and in the absence of evidence of the reasonable value of such services, no recovery can be had.

Error to Circuit Court, Kanawha County. Action by B. T. Clayton against C. G. Martin. Judgment for plaintiff, and defendant brings error.

Reversed; verdict set aside, new trial awarded.

J. Howard Hundley, for plaintiff in error. P. 67. Mead or, for defendant in error.

Lively, President:

In the trial of a notice of motion for judgment accompanied by affidavit, resisted by counter affidavit, demurrer to the notice, off-sets and recoupments, verdict and judgment thereon in favor of Clayton against Martin was rendered by the court of common pleas of Kanawha county for the sum of $423.50 on July 26, 1929. A writ of error from the circuit court was denied on September 9, 1929, and later this writ was awarded.

The account sued on is for legal services alleged to have been rendered by plaintiff to defendant and total the sum of $585.00, composed of an item $150.00 for services rendered in a case of the United States v. Martin pending in the United States District Court; an item of $85.00 for services in a suit of divorce by defendant against his wife; and an item of $300.00 for alleged services in a suit of defendant Martin against Imboden and others; and an item of $50.00 for conferences, not itemized. The last item of general charges for $50.00 was eliminated from the case as no proof had been offered thereon and there is no cross-error assigned on that item. This reduced the entire claim of plaintiff for his services to $535.00.

The principal error relied upon for reversal is the refusal of the court to strike out item No. 3 concerning the $300.00 alleged to be due for services rendered in Martin v. Imboden, and refusal to set aside the verdict on the specific ground, contained in the motion, that there was no evidence to sustain this charge of $300.00.

As to the other items of charge there was conflicting evidence as to the value of the services rendered, as well as the validity of the off-sets and recoupments. The jury has settled that controversy in favor of plaintiff, and we perceive no ground on which we could reverse the verdict and judgment if the claim had been for these items which total $235.00. But the verdict and judgment is for $423.50, and therefore it is quite apparent that the sum of $300.00 claimed as attorney fee in the case of Martin v. Imboden, or some part of that sum, was necessarily included in the verdict. Therefore, the case here depends upon the principal assignment of error that there was no evidence on which the jury could find for plaintiff as to the $300.00 item.

The substance of Clayton's evidence pertaining to this item is that Martin came to him and employed him to bring a damage suit against Imboden for $5,000, 000.00 and agreed to pay him a contingent fee of ten per cent or better on the amount recovered; that he prepared a praecipe and filed it with the clerk thereby instituting the suit; that after he had done so, Martin came to him and offered to pay $10.00 for his services at which time or probably before that time he, Clayton, had been informed that Martin had received an offer to compromise the suit for $75,000.00. He, Clayton, refused to accept the $10.00 and an additional inconsequental sum offered, whereupon Martin discharged him from further services in that connection. It appears that the damage suit against Imboden went no further. Other counsel were employed by Martin and a different suit instituted against Imboden in assumpsit, which suit appears to be still pending, and it appears from the...