Corson v. Lewis
| Decision Date | 18 December 1907 |
| Docket Number | 14,006 |
| Citation | 114 N.W. 281,77 Neb. 449 |
| Parties | WILL A. CORSON v. MARY LEWIS ET AL |
| Court | Nebraska Supreme Court |
AFFIRMED.
This is an action for personal injuries. A contract was made by the plaintiff, Lewis, with the intervener, Corson, for legal services. The case was settled by the parties and judgment of dismissal was entered. Corson now seeks to reopen the case to establish an attorney's lien which he asserts against the defendant. A full and detailed statement of the facts in the case may be found in the former opinion by Mr. Commissioner OLDHAM, ante, p. 446.
In the former opinion the principles are laid down that a contract for legal services is personal in its nature, and consequently not assignable, and that death or a disability which renders performance impossible, discharges the contract; that therefore, since Corson, before procuring a judgment or settlement of the case, was disabled by disease from performing his duties as attorney for plaintiff, the contract was annulled; that he had no valid claim for services performed against his client and therefore no lien could attach. We have no fault to find with the holding that a contract for legal services is personal in its nature and nonassignable, or that disability discharges such a contract. We think, however, that, if a disability occurs after a special contract for services has been partly performed, this does not prevent the disabled party, if the breach of the contract was made through no fault of his own, but by the act of God or unavoidable casualty, from recovering upon a quantum meruit for the reasonable value of the services rendered prior to the disability. This is the more modern rule, and we think is founded upon right and justice. Coe v. Smith, 4 Ind. 79, 58 Am. Dec. 618; Parker v. Macomber, 17 R.I. 674, 16 L.R.A. 858, 24 A. 464, and note; Johnston v. Board of Commissioners, 12 N.M. 237, 78 P. 43. This court has gone even further. In Murphy v. Sampson, 2 Neb. (Unof.) 297, it was held that, when services were rendered under a contract, a party breaking the same may recover the value of the services rendered before the breach, less such damages as the employer may have sustained by reason of the breach.
It is contended that the lien which was filed was not sufficiently specific or particular to give the defendant notice that the lien was claimed upon anything but a judgment which might be rendered. The notice was that the attorney claimed a lien for one-half of "whatever judgment is recovered," and it is said, since no judgment was recovered, no lien can be asserted. We think this is carrying refinement to excess. The object of the notice was to give the defendant knowledge that the attorney claimed one-half of any money which the plaintiff was entitled to recover from the defendant upon the cause of action, as a recompense for his services as attorney. As a matter of fact, the notice proved effectual to do this, because the record shows that Mr. Webster, the attorney for the defendant, spoke to Mr. Parrish, who had acted for Corson in the filing of Corson's lien, of the existence of Corson's claim, and to Mr. Mahoney, who succeeded Corson as attorney for Mrs. Lewis. We do not think that the law contemplates that parties can come together and settle pending actions in such a way as to deprive an attorney of his right to compensation, when both know that he makes such a claim and has given notice of it. Cones v Brooks, 60 Neb. 698, 84 N.W. 85.
It is objected, further, that the lien was not filed until after Corson had ceased to be the attorney for Mrs. Lewis, and after Mr. Mahoney had been employed. It is sufficient to say it was filed before the settlement and in sufficient time for the attorney for the defendant to ascertain its existence. It is said that the filing of the notice of the lien was not authorized, and that, since the settlement was consummated before its ratification, it cannot affect the parties. Under the circumstances any act which was taken by Mr. Corson's friends or relatives in his behalf, which was afterwards ratified by him, is as effectual as if it had originally been performed by himself or by his express direction. As soon as he learned of Mr. Parrish's act in filing the lien, which was soon after his return to the state, he approved the action, and in seeking to avail himself of any benefits which its filing may confer upon him he again ratifies and adopts Parrish's act as his own and his ratification relates back to the original time of filing. It is claimed that Corson has no standing in court without Mrs. Lewis having been brought in and made a party to his petition in intervention; that in no event could he recover from the defendant more than Mrs. Lewis might be indebted to him, and that in the ascertainment of that amount Mrs. Lewis is a necessary party. In answer to this, it is said Mrs. Lewis is insolvent, and that, since whatever sum might be recovered by him for his services against her must necessarily be paid by the defendant, the street railway company is the only real party in interest, and the value of the services can as well be ascertained without her as if she were a party to the proceeding. This is the view taken by the supreme court of Kansas in Kansas P. R. Co. v. Mihlman, 17 Kan. 224, and seems a sufficient answer to the argument.
It is strongly contended that the action being one not arising out of contract, but to recover damages for a personal injury and the claim not having been reduced to judgment, the right to a lien does not exist. We are aware that many courts are committed to the doctrine that parties to suits for personal injuries may settle or compromise such actions between themselves without reference to whether services have been rendered to the plaintiff by attorneys, for which no...
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