Bowers v. Jones

• Decision Date: 10 January 1921
• Docket Number: 21421
• Citation: 124 Miss. 57,86 So. 711
• Court: Mississippi Supreme Court
• Parties: BOWERS v. JONES ET AL

86 So. 711

124 Miss. 57

BOWERS v. JONES ET AL

No. 21421

Supreme Court of Mississippi

January 10, 1921

SUNDAY. Attorney retained on secular day may recover for services performed on Sunday.

Where an attorney is retained on a secular day, he may recover for the value of the retainer, although he may have conferred with his client on Sunday.

HON. W M. DENNY, JR., Chancellor.

APPEAL from chancery court of Harrison county, HON. W. M. DENNY JR., Chancellor.

Attachment in chancery by E. J. Bowers against Melondia E. Jones and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. A Leathers, for appellant.

There is of course, no contention on the part of the appellant, that an indivisible contract made and entered into on Sunday is not in violation of the law of this state, under section 1366 of the Code of 1906, (section 1102, of Hemingway's Code), and that such contract is void and unenforceable. If this case, under the facts as appear in this record, fell within this section there could be no doubt about its being void and unenforceable. However, during the same month when this case was tried in the lower court, the supreme court decided the case of Jones v. Brantly, 83 So. 802, which we submit is decisive of the case at bar, and renders it unnecessary to cite other authorities in this brief in support of appellant's contention in this case, and in support of the errors assigned by him on this appeal.

The contract of appellant with appellee, Mrs. Jones, was simply one of retainer for legal services which was made previous to the Sunday when Mrs. Jones arrived in Gulfport, by correspondence between Mrs. Jones and appellant, which is set out in the first part of this brief, just as in the above case of Jones v. Brantley, the contract under which the retaining fee was recovered was made between Jessie Jones and Mr. T. L. Gilmer on Thursday or Friday of the week preceding the Sunday on which Jessie Jones rendered the services to Mr. Brantley. We call the court's attention here to the fact that under the testimony in this record, appellant's case here is much stronger than that of the Jones case against Brantley, because it appears that in the Brantley case all of the services of the attorney Jones were rendered on Sunday, and in this case only one conference was had on Sunday and other conferences and advices of the appellee were had with, and given to, appellee, Mrs. Jones by Mrs. Bowers on Monday, Tuesday and Wednesday following, prior to and leading up to the final agreement of settlement entered into between Mrs. Jones and her daughter on January 14, 1919. In view of the fact that this character of contract of employment is a divisible contract as announced by this court in the above case of Jones v. Brantley, certainly appellant had a right to recover for his services rendered on a quantum meruit.

The testimony in the record as to the value of appellant's services in the case at bar is that they were of the value of twenty thousand dollars. This is testified to by General Marshall Miller, appellant, Mr. T. M. Evans and Mr. U. B. Parker, and this testimony is uncontradicted and is nowhere disputed by appellee, or any witness for appellee. In other words, as was said in the Brantley case above mentioned, there was no contract for the gross amount of appellant's services, but appellant was depending upon the value of his retainer's particular services rendered and performed under the retainer thereafter. The case of Duggan v. Champlain, 75 Miss. 441, 23 So. 179; W. U. Tel. Co. v. McLaurin, 70 Miss. 26, 13 So. 36; Campbell v. Davis, 94 Miss, 164, 47 So. 546, all support the foregoing contention on the part of appellant.

We regard it as useless to elaborate further in this brief. Certainly, if the above named case of Jones v. Brantley, decided by this court just one year ago, decides any principle of law under a given statement of facts, it decides that a retaining contract of agreement entered into by an attorney and client on a day previous to Sunday, although some of the services rendered under said contract are rendered on Sunday, is not a Sunday contract within the meaning of section 1366 of the Code, and therefore unenforcible, but that such a contract is first a divisible contract for services, which is legal, valid and enforcible under the law of the state.

Mize & Mize and Evans & Evans, for appellee.

The court will see that Mr. Bowers regarded his contract of employment as beginning Sunday. Therefore, if there was any contract of employment which Mrs. Jones absolutely denies, it began on Sunday, and is therefore null and void, under the case of Jones v. Brantley, 83 So. 802, as Mr. Bowers is suing on an alleged contract which he says he regarded as beginning on Sunday.

Furthermore, the minds of the parties never met as Mrs. Jones continued to want to know what his fee would be if she had to go into court in the case, and Mr. Bowers told her that he could not tell her at that stage of the matter. The fee he eventually asked her is somewhat large for advice given even on Sunday, Monday and Tuesday. The adjustment and agreement reached between Mrs. Jones and her daughter took place on Tuesday, the agreement being dated that day, and being prepared by Mr. Spratt, the attorney from Buffalo, with which Mr. Bowers had nothing to do and did not even know the nature of (testimony of Mrs. Jones; testimony of Mr. Spratt).

Out of dozens of lawyers in Gulfport, only three testified that twenty thousand dollars was a reasonable amount to charge for the advice; Gen. T. M. Miller, of New Orleans, U. B. Parker, of Wiggins, Mississippi, and Hon. T. M. Evans of Gulfport. The court found as a fact that the contract was made on Sunday and was therefore null and void.

The court will see from the record that the conversation had between Mrs. Jones and Mr. Bowers after her arrival in Gulfport were about the same nature as the correspondence in the record and hereinbefore referred to: viz, that if she needed a lawyer in Gulfport, she would like to have his services, and would like to know what his fee would be, but all the time not knowing whether she would need him, the matter depending upon whether or not, after conference with her daughter, she would decide to go into court. See testimony of Mr. Spratt that Mrs. Jones told...