Goodkind v. Wolkowsky

• Decision Date: 10 July 1942
• Citation: 9 So.2d 553,151 Fla. 62
• Parties: GOODKIND v. WOLKOWSKY.
• Court: Florida Supreme Court

9 So.2d 553

151 Fla. 62

GOODKIND v. WOLKOWSKY.

Florida Supreme Court

July 10, 1942

Rehearing Denied Sept. 29, 1942.

Marshall F. Sanders and Leonard Epstein, both of Miami, for petitioner.

Redfearn &amp Ferrell, Ward & Ward, and E. Clyde Vining, all of Miami for respondent.

BROWN, Chief Justice.

This is the third appearance of this cause in this Court. The case has been in the courts for some eight years or more.

On December 7 1934, David A. Goodkind, plaintiff below and petitioner for writ of certiorari here, filed in the Civil Court of Record of Dade County an amended declaration, consisting of a single special court, for the recovery of $4,000 and interest for the breach of a written contract of employment, dated April 10, 1931, by which he was employed to represent A. Wolkowsky and three others before the Treasury Department and the U. S. Board of Tax Appeals in an income tax dispute involving large sums, for which services he was to be paid $4,000 upon the final determination of the controversy. The payment of this amount in accordance with the contract was guaranteed in writing by A. Wolkowsky, against whose administrator the suit was brought. Copies of the contract and the contract of guaranty were attached to the amended declaration, which further alleged that plaintiff entered upon his duties and engaged himself in the performance of the contract and substantially performed the same on his part, and that while he was so engaged in performance of the contract, he was, on Cotober 17, 1931, wrongfully discharged, and his demand for payment of the agreed and guaranteed compensation was refused.

The Civil Court of Record sustained a demurrer to this amended declaration on the ground that, on the facts alleged, plaintiff's right to recover must be restricted to reasonable compensation for the value of the services performed prior to his discharge. Plaintiff refused to plead further and judgment was entered against him, whereupon he took writ of error to the Circuit Court the Judges of which Court, being evenly divided on the question, two for affirmance and two for reversal, the Court entered a judgment of affirmance, and petition for rehearing having been denied, said judgment of affirmance was brought before this Court for review on certiorari. Our opinion and decision on this first writ of certiorari is reported in 132 Fla. 63, 180 So. 538, 543, in which opinion we stated that the only question presented was the legal sufficiency of the said special count to withstand demurrer. And in that opinion, after reviewing the authorities on the controlling question involved, we stated our conclusion as to the law in the following language:

'We are inclined to follow the majority of the courts in holding that the discharge of an attorney, without cause, employed for a specified purpose and for a definite fee, after there has been substantial performance on the part of the attorney, is a breach of the contract for which an action for damages will lie against the client for the fee agreed upon.'

We then proceeded to hold that the amended declaration stated a good cause of action and was not subject to demurrer, and that the trial court erred in sustaining the demurrer. The judgment of the Circuit Court affirming the trial court was accordingly quashed 'with directions for further proceedings consistent with the views hereinabove expressed.'

Later, in December, 1939, after the case had been remanded, a trial was had in the Civil Court of Record on said amended declaration and a plea alleging in substance that at the time the contract was canceled on October 14, 1931, 'plaintiff had not substantially performed the services agreed to be performed by him in accordance with the provisions of said contract sued upon.' The trial resulted in a verdict for the plaintiff in the sum of $4,000 being the fee agreed to be paid in the contract, together with interest from March 16, 1933. The trial judge evidently attempted, and we think quite successfully so far as this record discloses, to follow the law as laid down by this Court in the opinion above referred to. The transcript of record presented here in support of the petition for writ of certiorari shows some of the charges given by the trial court. One given by the court of its own motion reads as follows:

'However, in this case the defendant has come into court and has submitted testimony conflicting with plaintiff's testimony, and that presents the issue for you to decide. That is, where does the truth of the case lie? Is the plaintiff right in his contentions or is the defendant right in its contentions as to the liability?'

The court also gave the following charges at the request of the defendant Wolkowsky:

'1. This is a suit on a contract of guaranty and the nature and extent of liability of a guarantor depends upon the terms of his contract of guaranty and he is bound only to the extent and in the manner stated in his contract of guaranty. By the terms of the contract or letter of employment herein sued on, A. Wolkowsky guaranteed the payment of the amount therein set forth for services which the plaintiff was to perform in behalf of the tax payers therein named before the Treasury Department and the United States Board of Tax Appeals at the time there should be a final determination of the tax as handed down by the United States Board of Tax Appeals or as the result of compromise or settlement with the Commissioner of Internal Revenue, and you are charged that the defendant would not be liable for any wrongful discharge, if any, unless the plaintiff, at the time of his discharge had substantially performed the agreement.'

'2. The issue in this case is not whether the plaintiff was prevented from the full and complete performance of the services which he was employed to perform, but whether he had substantially performed the services which he had been employed to perform prior to October 14, 1931, the date when the principal, I. Wolkowsky, by letter to the plaintiff canceled the letter of employment and discharged the plaintiff. By substantial performance is meant not an exact performance in every slight or unimportant detail, but a performance of all important particulars which were required to accomplish the intention and purpose of the parties as set forth in the contract or employment, and unless you believe from a preponderance of the evidence that there was such a performance on the part of the plaintiff, you should return a verdict in favor of the defendant.'

'3. If you find that plaintiff in this case has proved by a preponderance of the evidence that he had substantially performed his contract at the time he was discharged, then your verdict will be for the plaintiff.

'If, on the other hand, you find that plaintiff in this case has not proved by a preponderance of the evidence that he had substantially performed his contract at the time he was discharged, then your verdict will be for the defendant.'

A motion for new trial was filed on December 23, 1939, on ten grounds, one of which was that the verdict was contrary to the weight of the evidence. This motion was not acted upon until June, 1940, when the same was granted, on each and all grounds, and the verdict set aside, by Civil Court of Record Judges Herferman and Hendry; Judge Ross Williams, who had tried the case, meanwhile having been elevated to the Circuit Court Bench in the latter part of December, 1939.

To this order writ of error was sued out by plaintiff to the Circuit Court on July 3, 1940, and the Circuit Court considered the case en banc, and rendered an opinion in which it was held inter alia that the contract of employment and the discharge of the plaintiff before complete performance 'seems to have been well established,' and that plaintiff was entitled to his damages, 'and then comes the question of the measure of damages.' The Circuit Court in its opinion further stated that 'Under the charges to the jury, it appears that the jury had to find for the plaintiff in the full amount or else for the defendant.' That was exactly what the trial court should have charged the jury, on the pleadings in this case, in the light of this Court's former opinion in 132 Fla. 63, 180 So. 538, but the Circuit Court had a different view, and by a course of reasoning set forth in its opinion it reached the following conclusion and order :

'It appears that liability of the defendant has been regularly established by the rendition of the verdict of the jury but that a new trial should be had only as to the amount of damages. Wherefore,

'It is ordered that the cause stand affirmed as to granting of a new trial in so far as damages are concerned but in all other respects reversed and ordered remanded for trial upon the question of the amount of damages.'

The opinion and other just referred to was concurred in by four of the Circuit Judges, Judge Milledge not participating and Judge Ross Williams being disqualified. Defendant in error Wolkowsky filed a petition for rehearing, which was denied in an opinion concurred in by Judges Barns, Trammell, Gomez and Hunt, wherein the holding by this Court on the first certiorari, and quoted earlier in this opinion, was held to be dictum. Judge Stanley Milledge filed a dissenting opinion in which he said that he did not think the quoted passage was dictum, and that 'if it is not, then the Supreme Court decision is the law of the case on the measure of damages.' He correctly concluded that the trial court 'was not in error in submitting the case to the jury on the measure of damages as stated by the Supreme Court,' and that 'the order of the Civil Court of Record granting a new trial should be reversed and the judgment for damages obtained by the plaintiff...