Matheny v. Farley et als.
| Decision Date | 01 February 1910 |
| Citation | 66 W.Va. 680 |
| Parties | Matheny v. Farley et als. |
| Court | West Virginia Supreme Court |
1. Attorney and Client Contract Abandonment of Service
Right to Recover Fees.
An attorney, retained generally to conduct a legal proceeding, is presumed, in the absence of anything to indicate a contrary intent, to enter into an entire contract to conduct the proceeding to its termination, and he cannot lawfully abandon the service, before such termination, without justifiable cause; but if he have sufficient cause therefore he may do so, and recover what his services already rendered are reasonably worth. (p. 682).
2. Same Abandonment of Employment.
A case in which the facts proven were held to justify abandonment by an atorney of the case in which he had been employed, and to support the verdict and judgment in his favor for services already rendered. (p. 684).
Error to Circuit Court, Raleigh County.
Action by M. F. Matheny against S. W. Farley and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
Blake & Ward, for plaintiffs in error.
File & File, for defendant in error.
From the judgment of the justice against them, for $125.00, defendants, Nelson, Edward and Samuel Farley, appealed to the circuit court, where, upon a trial before court and jury, plaintiff recovered a verdict and judgment against them for the same amount. To this judgment a writ of error was awarded by this Court.
Plaintiff sued defendants for one hundred and fifty dollars for professional services rendered in an ejectment suit which defendants had employed him to defend. The fact of his employment is not denied, but admitted. The fee was not agreed upon, but sometime after his employment plaintiff told one of the defendants, when upon the land with him, that he would charge them not less than three hundred dollars, to which no objection was made.
The question controlling the case is whether plaintiff was discharged, or he voluntarily and without good cause abandoned the case before fulfilling his contract of employment.
The evidence shows that pending the suit, and against plaintiff's advice, defendants went upon the land in controversy and began cutting timber, and were at once enjoined. Being of opinion that it would be useless, plaintiff declined to appear for the defendants in the injunction suit, pending the ejectment suit, and try to obtain a dissolution of the injunction, but did file a petition for them in the cause to get the penalty of the injunction bond enlarged. This was not satisfactory to the defendants, and without consulting plaintiff and without notice to him, and he says against his protest, they employed other counsel, not only to obtain a dissolution of the injunction, which failed, but also to defend the ejectment suit. After this defendants neither consulted nor conferred with plaintiff directly or through their new counsel employed.
Defendants never directly notified plaintiff that he was discharged, but when depositions were being taken in the injunction suit one of them told counsel on the other side that they had let plaintiff go, and they afterwards appeared by other counsel. To another lawyer whom they tried to employ in the case, one of the defendants, referring to plaintiff, said: "We have got rid of him, and gotten Mr. English." Mr,. English, the attorney employed by defendants, and a witness for them on the trial of this case, testified that it is an unwritten law that one lawyer does not go into a case where another is employed until he is satisfied that the other one has been discharged. Mr. English was asked why he did not consult with plaintiff with reference to the case, and answered that when he was employed he did not think Mr. Matheny had any thing to do with it. Afterwards, when plaintiff was about to sue defendants for his services, one of them saw him and tried to induce him to go back into the case, expressing regrets on account of what had occurred, and putting the blame for it upon his co-defendants. But plaintiff declined re-employment and brought this suit. Some of the facts testified to by plaintiff and his witnesses are in some particulars controverted by defendants, two of them testifying that they had not authorized plaintiff's discharge.
The evidence shows that after his employment plaintiff made preparation to try the ejectment suit: that he made an abstract of the title, and went upon the land with one of the defendants and traced the lines in order to become familiar with all the details; that he made a diagram or plat of the land; and that he had many consultations with them; that they unduly and unnecessarily bothered him about the case, and he proves by his own evidence and the evidence of another witness the value of his services to have been at least $150.00, and that he was always ready and willing to perform his contract up to the time of his alleged discharge.
Do the facts prove a discharge, or a voluntary abandonment of the case for good cause, entitling plaintiff to recover the value of his services in this action? The general rule of law is that when a contract for service is entire, for a given sum, full performance of the contract is a condition precedent to the right to recover the stipulated compensation. Mechem on Agency, sections 634, 635, and 854. In section 854, this writer says: "An attorney who is retained...
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Neely v. Zimmer, CIVIL ACTION NO. 2:11-cv-00444
...7A C.J.S. Attorney & Client § 400 (2012); Sellers v. City of Summerville, 67 S.E.2d 137, 141-42 (Ga. 1951); see also Matheny v. Farley, 66 S.E. 1060, 1060 (W. Va. 1910) ("The general rule of law is that when a contract for service is entire, for a given sum, full performance of the contract......