Brandon v. Zerkowsky

• Decision Date: 12 June 1933
• Docket Number: 30600
• Citation: 167 Miss. 186,148 So. 797
• Court: Mississippi Supreme Court
• Parties: BRANDON et al. v. ZERKOWSKY

148 So. 797

167 Miss. 186

BRANDON et al. v. ZERKOWSKY

No. 30600

Supreme Court of Mississippi

June 12, 1933

Division B

Suggestion Of Error Overruled July 7, 1933.

Appeal from the chancery court of Adams county HON. R. W. CUTRER Chancellor.

Action by Gerard Brandon and another against Seaman Zerkowsky. Judgment for plaintiffs in an inadequate amount, and plaintiffs appeal. Affirmed in part and reversed and rendered in part.

Affirmed in part and reversed and rendered in part.

Brandon & Brandon and L. T. Kennedy, all of Natchez, for appellants.

Since ordinarily an agreement for a contingent fee does not give the attorney any interest in the subject-matter of the litigation, any disposition of the case the client chooses to make is binding on the attorney, and if the party dismisses a suit without receiving any consideration the attorney is entitled to nothing under the contract, his remedy being an action for damages or an action upon quantum meruit for the value of services rendered. Where the agreement is for a percentage of the recovery and the client compromises for less than the face of the claim, the attorney is in some jurisdictions entitled only to his proportion of the sum compromised for. The stipulated method of computing the compensation to be paid the attorney for his services must control even though the suit is settled without his consent. In some jurisdictions, however, the entire compensation stipulated for may be recovered in such a case, the client's act amounting to a waiver of complete performance on the part of the attorney.

6 C. J 745.

It is clear that Seaman Zerkowsky could not take under the will and proceed to prosecute his adverse claim to an one-half interest in all the property or estate which stood in the name of Charles Zerkowsky. He was, therefore, put to an election of his rights and remedies.

West v. West, 131 Miss. 880, 95 So. 739; Waggoner v. Waggoner, 30 L. R. A. (N. S.) 644.

The courts of Texas, Iowa, Kentucky and several other states have adopted the rule that, if the client compromises and settles his case without the consent of his attorneys, then the client has waived complete performance of the contract on the part of the attorney, has prevented the attorney from proceeding with the litigation, and that the attorney is entitled to the entire compensation stipulated for.

3 A. L. R. 472-575; Western States Oil & Land Co. v. Helms, 143 Okla. 206, 228 P. 964, 72 A. L. R. 357.

If the true consideration for a settlement is not stated in the release executed by the client, the attorneys are entitled to the agreed percentage of the true consideration and are not bound by that recited in the release.

Whitwell v. Aurora, 139 Mo.App. 597, 123 S.W. 1045; Mytton v. N.Y. C. & St. L. R. Co. (Mo. App.), 198 S.W. 189; Note 3 A. L. R., 472-575.

The fact that the offer of one-fourth of the property was made to Seaman Zerkowsky in the will does not change the principles involved from those if such offer had been made by Charles Zerkowsky while living. It was an offer, even though made by will, and was nothing but an offer. It is undisputed that Seaman Zerkowsky accepted the offer by electing to take under the will, without the consent of his attorneys. That by so doing he prevented his attorneys from further proceeding with his adverse claim. He prevented them from fully performing their contract. He waived complete performance on their part, and under one line of decisions, attorneys would be entitled to the fee to be computed upon his claim to an one-half of the estate. On the other hand, if this court adopts the rule that the attorneys would be entitled to have their fee computed upon the amount actually received in settlement, then it would be computed upon an one-fourth of the estate. We are not unmindful that opposing counsel claim that the release sets forth that Seaman Zerkowsky settled his claim for five thousand dollars, yet it is perfectly apparent from the record that Seaman Zerkowsky's adverse claim was not settled for five thousand dollars but was settled for one-fourth of the estate. In other words, the other legatees under the will paid Seaman Zerkowsky five thousand dollars to accept under the will.

Where an attorney is discharged by his client or is otherwise wrongfully prevented from performing the professional duties for which he was employed without fault on the part of the attorney, the latter is entitled to compensation.

Attorneys at Law, 2 R. C. L. 1048; Hall v. Gutter & Gutter, 155 Ala. 375, 47 So. 155; Lantrip v. Ivy, 22 Ala.App. 190, 114 So. 12.

A client cannot impair or destroy his attorney's right to a contingent fee.

Ex parte Wilkinson, 220 Ala. 529, 126 So. 102; Attorneys at Law, 2 R. C. L. 1059, 1060.

The court should look to the record in the case wherein the services were rendered for assistance and guidance in estimating the value of the services of the attorney by the amount of labor performed as indicated by the record.

It is submitted that the allowance made by the chancellor was wholly inadequate and insufficient to compensate the attorneys for the vast amount of work done and the value of their services.

L. A. Whittington and Engle & Laub, all of Natchez, for appellee.

All of the appellants are well known to the chancellor and he has full information as to the nature, character and value of the services rendered and as to the fees that are usually paid in this community, and as chancellor it has been his duty during these many years to allow fees to all of the attorneys in his district. He is in a better position than anyone else to estimate the value of the services.

Griffith's Chancery, section 465.

We respectfully submit in this case that the appellants are not entitled to a recovery either under the contract or upon a quantum meruit. This court in the case of Zerkowsky v. Zerkowsky, 160 Miss. 278, 131 So. 647, which was litigation in which the parties here were interested, has held that the contract by which the appellant employed his attorney contained no assignment of any interest in the claim against his brother, Charles Zerkowsky, and that same was a mere agreement for the payment of attorneys' fees contingent on a recovery.

This court further held that the appellee here was under no obligation to appeal his case to the supreme court after having lost same in the chancery court and, therefore, following the decision of this court in Lamar County v. Talley & Mason, 116 Miss. 588, 77 So. 299; Seaman Zerkowsky had the right to dismiss his appeal.

Since under the contract the appellants here were to receive in the way of fee one contingent upon their recovery, and since they lost the case in the lower court and since this court has held in Zerkowsky v. Zerkowsky, supra, that Seaman Zerkowsky was under no obligation to appeal his case, and, therefore, had the right to dismiss his appeal, and since the record shows, as pointed out in this brief, that this appeal was taken against the wishes of the appellee here and same was practically forced upon him by his attorneys, we, therefore, say that in line with the above decision and in line with what should be the public policy of the state, the circumstances considered, that no recovery of attorneys' fees can be had under the contract.

Lamar County v. Talley & Mason, 116 Miss. 588, 77 So. 299; Cochran v. Henry, 107 Miss. 233, 65 So. 213.

To penalize the client by the condition that he must pay a fee in event of dismissal, if such appeal has been taken under such circumstances, would be in effect to nullify his rights and would effectually prevent him in nine out of ten instances from having the benefit of what should be the public policy of the state in such cases.

Under a quantum meruit, if allowed under the facts in this case, there would be no amount due the appellants here.

Where attorney in partition suit was employed on contingent basis, and was prevented from full performance, he was entitled to reasonable compensation only for services rendered before discharge.

Owens v. Bolt, 118 So. 590; 6 C. J. 724; 3 A. L. R. 472; Thole v. Martino (1914), 56 Pa. S.Ct. 371.

The dismissal of a suit to set aside deeds, brought by an attorney under a contract giving him one-fourth of any land decreed to be owned by the client, does not give the attorney a right of action against the client for one-fourth of the value of the land, whatever...