Freerks v. Nurnberg

• Decision Date: 24 March 1916
• Citation: 157 N.W. 119,33 N.D. 587
• Parties: FREERKS v. NURNBERG.
• Court: North Dakota Supreme Court

33 N.D. 587

157 N.W. 119

FREERKS

v.NURNBERG.

Supreme Court of North Dakota.

Feb. 25, 1916.

Rehearing Denied March 24, 1916.

Syllabus by the Court.

In an action by an attorney at law to recover on the quantum meruit for professional services rendered to the defendant at his request, the answer, among other defenses, alleged that a portion of such services were performed under a special contract, by the terms of which plaintiff agreed to commence and to prosecute, at his own cost and expense, certain actions for the defendant upon a contingent fee basis, and that in the event he should be unsuccessful, he should receive no compensation for his services. It was also alleged that he was unsuccessful in such litigation. At the trial, such defense was, on plaintiff's motion, stricken from the answer and proof of the matters thus pleaded was offered and rejected. Held, that such rulings constituted prejudicial error.

Following Morris v. Minneapolis, etc., Ry. Co., 155 N. W. 861,held, that the Supreme Court, in law appeals, sits merely in review of errors, and where no ruling of the trial court as to the sufficiency of the evidence is invoked, either by motion for a directed verdict or for a new trial, there is nothing for this court to review.

Defects in pleadings which are readily remedied will not be considered for the first time in the Supreme Court.

Appeal from Stutsman County Court; John U. Hemmi, Judge.

Action by M. C. Freerks against Herman Nurnberg. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

John A. Jorgenson and C. S. Buck, both of Jamestown (W. H. Padden, of Courtenay, and Geo. H. Stillman, of McHenry, of counsel), for appellant. Thorp & Chase and M. C. Freerks, all of Jamestown, for respondent.

FISK, C. J.

This litigation arose in the county court of Stutsman county and the appeal is from a judgment of that court in plaintiff's favor for the sum of $295 and costs.

Plaintiff, a member of the bar of Stutsman county, sued to recover on various alleged causes of action for professional services rendered to the defendant at his request, under an implied promise to pay the reasonable value thereof. All the allegations of the complaint are put in issue by the answer, and as to two of the plaintiff's principal causes of action, the answer by way of an affirmative defense alleges that the services were performed by plaintiff under an express contract entered into through plaintiff's solicitation, whereby he agreed to bring two certain actions for defendant, one against Theodore Thom and the other against Grant Mercantile Company et al., and to carry on all proceedings with reference thereto on a contingent basis, agreeing to pay all costs and expenses connected therewith and to receive one-third of the amount collected after deducting costs and expenses, and turn over the balance to the defendant; and, if plaintiff failed to collect anything from such parties, he was to stand all costs and disbursements, and was to receive nothing from defendant for his services in connection with such suits. Defendant further alleges that he consented to employ plaintiff upon the above conditions and not otherwise, and that plaintiff failed to recover or collect anything in either of such suits; also that defendant was mulcted in costs and expenses in connection with such litigation in certain designated sums, for which he has not been recompensed by plaintiff. Defendant also interposed counterclaims to recover for such costs and expenses. Numerous other counterclaims are interposed for smaller amounts, but which it is unnecessary to notice.

At the commencement of the trial, plaintiff moved that the defenses with reference to the special contracts and also the counterclaims for costs be stricken from the answer, on the ground that the special contracts thus pleaded were champertous and void and did not constitute a defense, nor could they form the basis of counterclaims. Defendant conceded that if such contracts were champertous, no recovery on the counterclaims could be had, but insisted that the contracts were properly pleaded as defensive matter. The motion to strike was granted, and later the court refused to admit proof of such contracts. Such rulings form the basis of appellant's chief assignment of error, and the only one requiring extended notice.

[1] Plaintiff sought to recover upon the quantum meruit for these professional services, the greater portion of which were rendered, as defendant sought to plead and prove, under the special contracts aforesaid. Plaintiff having been successful in inducing the trial court to sustain his motion upon the grounds, as stated in his brief, “that such a contract, if made, would be champertous and illegal and contrary to public policy, it must be assumed on this appeal that such contracts were in fact entered into, and that defendant, if permitted to do so, could and would have shown that the services were performed by plaintiff pursuant thereto. Plaintiff is in rather poor position to now assert that such contracts were merely executory and were in effect abandoned before the services were rendered. Nor, for like reasons, is he in a very favorable position to urge nonprejudice to appellant on account of such rulings. Nor is his contention of any force that because defendant, according to the allegations of his counterclaims, advanced certain costs which plaintiff agreed to advance, this conclusively shows that the transaction was taken from without such illegal and champertous contracts. The defendant's theory as to this was merely that he advanced such costs and expenses as a mere loan, under a promise that plaintiff would later pay him.

The question fairly presented, therefore, is whether proof that the services sued for were performed under such concededly illegal contract, which was void as against public policy, would defeat plaintiff's right of recovery for such services under a quantum meruit. Plaintiff concedes that if such a contract had been made with respect to promoting a divorce suit, or with respect to doing any other act which in and of itself contravened public policy, no...