French v. Cunningham

• Decision Date: 08 March 1898
• Docket Number: 17,830
• Parties: French v. Cunningham et al
• Court: Indiana Supreme Court

49 N.E. 797

149 Ind. 632

French v. Cunningham et al

No. 17,830

Supreme Court of Indiana

March 8, 1898

From the Marion Circuit Court.

Affirmed.

Alex. M. Harrison, Arthur H. Noyes, William A. Pickens and Linton A. Cox, for appellant.

W. A Ketcham and Baker & Daniels, for appellees.

OPINION

Monks, J.

This action was brought by appellees, as partners, against appellant, to recover on quantum meruit for professional services rendered appellant, and also to recover for money advanced by them for expenses in connection with such services. The court made a special finding of facts, and stated conclusions of law thereon in favor of appellees, and over a motion for a new trial, rendered judgment against appellant. The only errors assigned, and not waived, are (1) that the court erred in its conclusions of law; (2) the court erred in overruling appellant's motion for a new trial.

The only questions presented by the motion for a new trial depend for their determination upon the evidence which is not in the record under the rule declared in Campbell v. State, 148 Ind. 527, 47 N.E. 221, and cases there cited; Citizens' Street R. R. Co. v. Sutton, 148 Ind. 169, 46 N.E. 462, and cases cited.

It is insisted by appellant that the written contract provides for the payment of a contingent fee, and, as appellees were not successful within the time fixed, and other counsel were employed, they are not entitled to any compensation whatever.

The special finding shows that appellees, who were engaged in the practice of law as partners, were first employed in September, 1892, by appellant, to set aside, by contest or otherwise, the codicil to her father's will, her interest in such controversy being over $ 500,000.00, without any agreement as to the compensation to be paid, and that they were engaged in the investigation of the law and facts of the cause until February 16, 1893, when a written contract was made and signed by one of the appellees, which provided: "In case said attorney succeeds in setting aside said codicil or in obtaining such modifications thereof as may be acceptable to said Blanche W. Culbertson, without the employment by her of other counsel, then he is to receive for his services the sum of $ 10,000.00, whether the same be by suit or not; provided the same is finished and accepted within sixty days from this date. If at the end of sixty days from this date said attorney shall not have succeeded in setting aside said codicil or securing a settlement satisfactory to said Blanche W. Culbertson, it is understood that said time shall be extended or a new contract of employment made between the parties." After the execution of this contract, appellees continued the investigation of said cause until in April, 1893, when an action was commenced to contest the codicil of said will. Afterwards, in May, additional counsel were employed to assist appellees in said cause. On June 28, 1893, appellant by letter, dismissed appellees and afterwards would not permit them to perform or discharge any duties as attorneys in said cause, and said cause was compromised November 22, 1893, without a trial. The special finding shows that appellees were ready and willing at all times to comply with their part of the contract made when first employed, as well as the written contract of February 16, 1893, and the only reason why they did not render any services as attorneys after June 28, 1893, was because appellant would not consent or permit them to do so. There can be but one conclusion drawn from the facts stated in the special finding, and that is that the dismissal of appellees by appellant was without any fault on their part.

It is well settled that, where the complete performance of an attorney's services has been rendered impossible, or otherwise prevented, by the client, the attorney may, as a rule, recover on a quantum meruit for the services rendered by him. Scobey v. Ross, 5 Ind. 445; Brodie v. Watkins, 33 Ark. 545; Webb v. Trescony, 76 Cal. 621, 18 P. 796; Moyer v. Cantieny, 41 Minn. 242, 42 N.W. 1060; McElhinney v. Kline, 6 Mo.App. 94; Duke v. Harper, 8 Mo.App. 296; Kersey v. Garton, 77 Mo. 645; Carey v. Grant, 59 Barb. (N. Y.) 574; Badger v. Mayer, 8 Misc. 533, 28 N.Y.S. 765; Quint v. Ophir Silver Mining Co., 4 Nev. 304; 3 Am. and Eng. Ency. of Law (2d ed.), 425-427; Weeks on Attorneys (2d ed.), section 334. If the compensation agreed upon is contingent on the successful result of the suit, the measure of damages is not the contingent fee, but the reasonable value of the services rendered. Badger v. Mayer, supra; Western Union Tel. Co. v. Semmes, 73 Md. 9, 20 A. 127; Durkee v. Gum, 41 Kan. 496, 21 P. 637, 13 Am. St. 300; Polsley v. Anderson, 7 W.Va. 202, 23 Am. Rep. 613; 3 Am. and Eng. Ency of Law (2d ed.), 427, 431.

Scobey v. Ross, supra, is cited by appellant to sustain said contention. In that case Test and Scobey, attorneys, had a contract with the client, Nancy Ross, in which she agreed to pay them $ 150.00 of a judgment "when they should collect the same." Scobey, one of the attorneys, collected $ 200.00 of the judgment. Mrs. Ross became dissatisfied and discharged said attorneys and employed others, she then sued Scobey for the $ 200.00 and recovered judgment therefor. The court said "the question arises, upon what ground could Scobey retain said $ 200.00 or any part thereof? Supposing the contract between Mrs. Ross and Messrs. Test & Scobey valid and in force, it had not been fulfilled. The $ 500.00 decree had been but in part collected, and no claim for compensation arose under the agreement till the whole of said decree was collected. Supposing the contract valid, but broken and rescinded, then the claim of Test & Scobey would only be for a reasonable compensation for services actually performed, with, perhaps, damages for breach of the contract; but such compensation and damages could not be deducted in this suit, as no plea, notice, or counterclaim was filed, but the general issue simply pleaded." It is clear that in said case, if the proper pleading had been filed, that the attorneys would have been entitled to a reasonable compensation for their services in said cause in the collection of said $ 200.00 and damages for any breach of the contract by the client.

It is also urged that, as said written contract was entered into after appellees had been employed as attorneys, and while the relation of attorney and client existed, the same was void; that it is not only impossible to recover upon the contract, but there can be no recovery on the quantum meruit for services rendered under the contract. Such contracts, however, if invalid, are only presumptively so, and in such case the rule is that the burden of proof is upon the attorney to show the fairness of the transaction, and that the compensation provided for in such subsequent agreement does not exceed a fair and reasonable remuneration for the services which have been rendered, or which it is his duty to render. Elmore v. Johnson, 143 Ill. 513, 32 N.E. 413, 36 Am. St. 401, and note pp. 413-416, 21 L. R. A. 366; Burnham v. Heselton, 82 Me. 495, 20 A. 80, 9 L. R. A. 90, and note; Dickerson v. Bradford, 59 Ala. 581, 31 Am. Rep. 23; LeCatt v. Sallee, 3 Porter (Ala.) 115, 29 Am. Dec. 249; Weeks on Attorneys (2d ed.), sections 346, 363, 364; 3 Am. and Eng. Ency. of Law (2d ed.), 433. The rule is thus stated in 1 Story Eq., section 311: "But the burden of establishing its perfect fairness, adequacy, and equity is thrown upon the attorney, upon the general rule, that he who bargains in a matter of advantage with a person, placing confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other."

In Dickerson v. Bradford, supra, the court said: "Having entered upon the duties of the relation without a contract stipulating the measure of compensation, the appellee and his partner, had no other legal claim on the appellant, than the right to demand of him reasonable compensation for their services. If the contract subsequently made stipulates for a greater compensation, it cannot be supported, unless it affirmatively appears that there is an absence of undue influence, and the best evidence of its absence, would be that the attorneys gave to their client the information and advice, which it would have been their duty to give, if the client had been dealing with a stranger, conferring on him the same rights and advantages on the same considerations, which the contract confers on them." See, also, Judah v. Trustees Vincennes University, 23 Ind. 272, 280; McCormick v. Malin, 5 Blackf. 509, 523. The rule is, however, that when such...