Kersey v. Garton

• Decision Date: 30 April 1883
• Citation: 77 Mo. 645
• Parties: KERSEY v. GARTON, Appellant.
• Court: Missouri Supreme Court

77 Mo. 645

KERSEY

v.GARTON, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Greene Probate and Common Pleas Court.--HON. T. H. B. LAURENCE, Judge.

AFFIRMED.

This was a suit for attorney's fees. The petition alleged that the plaintiffs were partners in the profession and practice of law under the firm name of Kersey & Druley; that they were employed by defendant to bring suit for certain land for a fee contingent upon success; that they had brought the suit and were prosecuting the same, when defendant refused to permit them to proceed and had the suit dismissed; and that defendant refused to pay plaintiffs any fee. The answer was a general denial. Plaintiffs had judgment. Defendant moved in arrest of judgment and for a new trial. Both of these motions were overruled and defendant appealed.

McAfee & Massey for appellant.

Boyd & Vaughan for respondent.

I.

SHERWOOD, J.

The objection that the petition does not state that either of the plaintiffs ever obtained a license to practice law, cannot be urged in arrest. The defect is not a fatal one, and is cured by verdict. Inferentially, at least, the allegation is made that plaintiffs were duly admitted to the bar.

II.

The declaration of law to the effect that the defendant having prevented the plaintiffs from completing their contract by dismissing his suit, they were entitled to recover as if the contract were fully performed on their part, we regard, in view of the facts in evidence, as correct and sustained by the authorities cited in behalf of plaintiffs. McElhinney v. Kline, 6 Mo. App. 94; Marsh v. Holbrook, (N. Y. Ct. App.) 3 Abb. 176; Baldwin v. Bennett, 4 Cal. 392; Myers v. Crockett, 14 Texas 257; Hunt v. Test, 8 Ala. (N. S.) 713. And there is much force in the view that contracts, such as the one before us, are from the nature of the engagement; from the peculiar and confidential relations existing between the parties thereto; from the fact that an attorney, when discharged by his client, is prevented from accepting employment in the same cause by the adverse party; from the fact of its being practically impossible to determine the value of an attorney's services up to the time of his dismissal, and from the fact of the impossibility of ascertaining the measure of his damages; that these circumstances should exempt such a contract from those rules which prevail in cases of contracts differing so widely in these essential particulars from that under discussion, and should fix the measure of damages at the price agreed to be paid. Weeks on Attys., § 266. In the language of the supreme court of Alabama, when discussing a similar case: “It would be most unjust that the defendant, by a compromise with the adverse party, should snatch from the plaintiff the fruits of his labor, and deprive him of the power of performing his contract.” Hunt v. Test, supra. In this case, the defendant, by compromising the...