F.L. Stitt & Co. v. Powell

• Decision Date: 01 August 1927
• Citation: 114 So. 375,94 Fla. 550
• Parties: F. L. STITT & CO. v. POWELL.
• Court: Florida Supreme Court

114 So. 375

94 Fla. 550

F. L. STITT & CO. v. POWELL.

Florida Supreme Court

August 1, 1927

Rehearing Denied Oct. 13, 1927.

En Banc.

Error to Circuit Court, Duval County.

Action by George M. Powell against F. L. Stitt & Co. Judgment for plaintiff, and defendant brings error.

Affirmed on condition of a remittitur.

On Petition for Rehearing.

Syllabus by the Court

SYLLABUS

In absence of express agreement, law implies contract by one employing attorney to pay him reasonable compensation. Where one employs an attorney at law to perform legal services whether in a regular court procedure or otherwise, and there is not, at the time of such employment nor subsequent thereto, an express agreement between the parties as to the amount the attorney is to be paid for his services, the law under such circumstances, implies a contract upon the part of the one employing such attorney to pay him a reasonable compensation for such services.

In determining reasonable attorney's fee, beneficial results obtained through his services should be considered. In determining what is a reasonable fee to be paid an attorney for his services, the beneficial results secured through such services should be considered.

Evidence as to amount for which property to which attorney secured title for client was sold held admissible in action for attorney's fees. Where it appears from the record that the plaintiff, in his capacity as an attorney at law, at the request of the defendant, rendered services for it in connection with securing the legal title to certain valuable real estate, and that, as a result of such services, legal title to the property was secured, the property purchased by the defendant for the sum of $450,000, and shortly thereafter sold by defendant for the sum of $750,000, and it further appearing that in the course of plaintiff's employment as such attorney in this particular matter, which extended over several months, he assisted the defendant in negotiating the deal for the purchase of the property, in the settlement and adjustment of certain suits involving the property, and in securing the release thereof from other apparent claims and liens, and also in advising defendant in its negotiations for the sale of the property, and preparing certain necessary documents relating to said sale, held, that in an action by the attorney to recover of the defendant reasonable compensation for his services, it was not error to admit evidence as to the amount for which the property involved was sold by the defendant, as it tended to show the beneficial results of plaintiff's services.

Instruction permitting jury in fixing attorney's fee to consider nature and importance of litigation involved held not erroneous, although attorney avoided litigation. In an action by the plaintiff, to recover from the defendant compensation for plaintiff's services as an attorney, as set forth in the preceding headnote, the court, in its instructions to the jury as to the matters to be taken into consideration in fixing the attorney's compensation, charged the jury that they might consider 'the nature and importance of the litigation involved in connection therewith.' Held, that the charge was not susceptible to the objection that it was erroneous because the plaintiff did not appear in any litigation, the record showing that, at the time of plaintiff's employment, suits were pending, involving the property that defendant was seeking to purchase, and that there was other threatened litigation, all of which tended to jeopardize defendant's possibilities of acquiring good and sufficient title to the property or enforcing the contract it had for the purchase thereof; it appearing further that in the course of the plaintiff's employment he advised in and piloted the pending litigation, prevented and forestalled other threatened litigation, and so advised managed, and controlled affairs as to prevent a successful foreclosure of mortgages, and to avoid the necessity of bringing a suit to enforce the contract of the defendant.

Nature and importance of litigation or business in which attorney's services are rendered may be considered in fixing his fee. The nature and importance of the litigation, or the business in which the services of an attorney are rendered, are circumstances to be considered in fixing the amount of compensation to be paid such attorney.

Instructing that jury might consider whether attorney's fee was to be absolute or contingent, and that attorney might properly charge larger fee if it was to be contingent, held proper, under evidence. In addition to the facts concerning the employment of the plaintiff as an attorney and the services rendered for the defendant under employment, as set forth in headnotes Nos. 3 and 4, there was evidence which tended to show that, unless defendant was successful in securing the property it was seeking to purchase, it would not have been able to have paid plaintiff a fee commensurate with the ability, labor, and skill required in his employment and the value of the property involved, and that there was necessarily an element of contingency entering into the matter of attorney's fee; that if success crowned the efforts of the attorney, the defendant would be able to pay a fee in keeping with the nature and importance of the matter, and the ability, experience, and skill of the plaintiff, but if the services proved fruitless, there was a probability that the defendant could not pay a fee at all in keeping with the magnitude of the proposition and the work involved. Held, that the court, under these circumstances, did not err in charging the jury that they might, in determining what would be a reasonable attorney's fee, consider 'whether or not the fee to be paid to the plaintiff by the defendant was absolute or contingent, it being a well-recognized rule of law that an attorney may properly charge a much larger fee when the same is to be contingent than when it is not.'

Promise to carry out subsisting contract with promisee or performance of contractual duty is not consideration for another contract; promise of additional compensation for promisee's performance of contract under which he is already obligated is without consideration. 'The promise of a person to carry out a subsisting contract with the promisee or the performance of a contractual duty is clearly no consideration, as he is doing no more than he was already obligated to do, and hence has sustained no detriment, nor had the other party to the contract obtained any benefit. Thus, a promise to pay additional compensation for the performance by the promisee of a contract which the promisee is already obligated to the promisor to perform is without consideration.' 13 C.J. 353, par. 209.

Rule holding one in fiduciary capacity to strict accountability applies to agreements for increased compensation after confidential relationship has commenced; agreement to pay additional compensation for services for which attorney was already obligated is, in absence of peculiar facts, invalid. 'The rule holding a person in a fiduciary capacity to the strictest accountability applies to agreements for increased compensation after the confidential relationship is commenced. Such an agreement, no additional services by the attorney being contemplated, is, in the absence of peculiar facts, without consideration and invalid.' 6 C.J. 737, par. 311.

Attorney held not entitled to recover compensation offered by client in addition to reasonable fee for services for which he was already engaged. After the relationship of attorney and client between the plaintiff and defendant had been created in reference to the 'Lake Osborne land,' and the plaintiff had already entered upon the discharge of his duties as the attorney for defendant upon the implied contract for a reasonable attorney's fee, the vice president of the defendant, at a conference regarding the outlook and possibilities of the success of the proposition, said to the plaintiff, 'If you put this thing through I'll give you in addition to your fees, $10,000 worth of American Express checks, so you and Mrs. Powell can take a trip to Europe.' In the suit brought by plaintiff to recover for his services, he included in his cause of action, in addition to his claims for reasonable compensation, the following item: 'To agreed additional compensation $10,000 American Express Company's travelers' checks.' Evidence was offered by each party relative to the meaning and effect of this proposal. Held, that the plaintiff could not recover any part of the $10,000, same being an agreement for additional compensation, after the relationship of attorney and client had been created, and without any additional services being required of the plaintiff.

Client's promise to pay attorney additional compensation for services which attorney was already obligated to perform held without consideration and not binding. The promise of the $10,000 in American Express Company's travelers' checks, set forth in the above headnote, was without consideration moving from the plaintiff. He was already obligated to serve the defendant to the best of his ability as an attorney, under the implied contract for a reasonable fee. Therefore the promise was not a binding obligation upon the defendant.

Submitting to jury client's agreement to pay attorney extra compensation for services which he was already bound to perform held error. The proffer to give $10,000 in American Express Company's travelers' checks, quoted in the ninth headnote, being only the proffer of a gift, it constituted no actionable obligation upon the part of the defendant, and it was error to have submitted this item of plaintiff's claim to the jury.

Verdict fixing reasonable...