De Fires v. David
| Decision Date | 09 June 1954 |
| Docket Number | No. 1492.,1492. |
| Citation | 105 A.2d 746 |
| Court | D.C. Court of Appeals |
| Parties | DE FRIES v. DAVID. |
Philip B. Brown, Washington, D. C., with whom Malcolm S. Langford, Washington, D. C., was on the brief, for appellant.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
The question is whether a client was entitled to the return of part of a retainer fee paid to his lawyer.
DeFries, an employee of the Federal Government, received an interrogatory from the Civil Service Commission concerning his loyalty to the United States. He sought the advice of David, an attorney. After some discussion as to the fees to be charged, the parties signed this agreement:
Thereafter David spent 2 2/4 hours helping the client prepare his answer to the interrogatory. This answer proved sufficient to establish DeFries' loyalty, and the proceeding ended without a formal hearing and without any further legal work by David. Thereupon DeFries asked for a refund of the balance of the $500 remaining after deducting $40 for each hour he had spent on the case. David refused and DeFries brought this suit. A jury returned a verdict for the attorney, David.
On appeal DeFries contends that the trial judge should have awarded him a directed verdict. It is by no means clear from the record whether he made a timely motion for an instructed verdict; nor is it clear that his (verbal) motion for judgment n. o. v. complied with the governing procedural rules. Nevertheless, we have considered his contention on the merits. He argues that according to the written agreement David was entitled to a fee of only $40 per hour, that use of the word retainer in the agreement did not have the effect of making the sum paid non-returnable, and that even if there was some ambiguity in the instrument is must be resolved against appellee who wrote it.
We think the trial court properly refused to take the case from the jury and rule for plaintiff as a matter of law. The written agreement does not purport to say what shall become of the retainer fee in the event the fee computed on an hourly basis proves to be less than $500. The agreement does no more than acknowledge receipt of $500 and provide that it is to be applied against the hourly fee of $40. It does not require that any portion of the fee be returned to the client; nor does it specify that the fee shall be completely non-returnable. Consequently, there was a question for the jury as to what agreement the parties had reached on that subject. This is true regardless of the meaning to be given the word "retainer," and the use of that term in the agreement had no bearing upon whether the question should have gone to the jury. Plaintiff testified in part "that it was his understanding from the general conversation" that the $500 was to be a deposit against the hourly fee and that he would be entitled to a return of that part of the $500 which was not earned by the attorney at the hourly rate, hut he admitted that he "could not honestly state" that defendant had specifically said that any part of the $500 would be returned. Defendant was more specific on the point: he testified that the $500 retainer "represented a minimum, non-returnable fee" against which the hourly fee rate would be applied. On the basis of this testimony it would have been clearly erroneous to take the factual issue from the jury.
Next appellant contends that the judge erred (1) in refusing to instruct the jury as to the reasonable value of appellee's services, (2) in modifying the meaning of a sentence read to the jury from Knight v. Sontag,1 and (3) in defining the word "retainer" to the jury.
Rule 23(b) of this court makes it unnecessary for us to consider these errors. That rule provides: "If error...
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Hale v. United States, 1612.
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