McCurdy v. Dillon

• Decision Date: 08 March 1904
• Court: Michigan Supreme Court
• Parties: McCURDY v. DILLON.

98 N.W. 746

135 Mich. 678

McCURDY v. DILLON.

Supreme Court of Michigan

March 8, 1904

Error to Circuit Court, Shiawassee County; Stearns F. Smith, Judge.

Action by John T. McCurdy against Susan Dillon. There was a judgment for plaintiff, and defendant brings error. Reversed.

Watson & Chapman, for appellant.

John T McCurdy, in pro. per.

MOORE J.

Plaintiff sued defendant to recover for services rendered her as attorney in a case commenced by capias by her against her husband, and for services rendered as solicitor in a divorce case commenced by her against her husband; also for expenses incurred by him in the two cases. Both of the cases were settled before the plaintiff brought this suit. No evidence was offered on the part of the defendant, and the trial judge directed a verdict in favor of plaintiff for the sum of $431.35. The case is brought here by writ of error.

The items going to make up the verdict were expenses, $81.35 retainer in divorce case, $100; percentage agreed upon in capias case, $250. The defendant claims the agreement as sworn to by the plaintiff was void as against public policy citing Hackley v. Circuit Judge, 58 Mich. 454, 25 N.W. 462; Jordan v. Westerman, 62 Mich. 170, 28 N.W 826, 4 Am. St. Rep. 836. It is also claimed that services performed under a void contract can be recovered only under the quantum meruit. It is Mr. McCurdy's claim: That defendant sent a request by her son to him to act as her lawyer, and requested him to come to her house, as she could not come to him. That he went to her house after preparing some necessary papers, and had a talk with her about her cases and his pay, and, in reply to her inquiry as to his fee, told her "I will charge you one hundred dollars in the divorce case for retainer fee, and fifty dollars in the law case as a retainer fee, and, when we get among your friends, we will make a new bargain;' and then I said, 'The question of retainer fee can be taken care of at that time.' She says: 'Very well. I will do that, and I will pay you.' She says: 'What else will you charge me for?' I said: 'I will charge you for the work I did yesterday--making the examination and preparing the bill of divorce in the case--$25. I shall charge you $15 for coming out here and leaving my office to-day. I will charge you whatever the liveryman charges me for the livery rig, and whatever I am obliged to pay Mr. McBride.' We turned to him, and he said he ought to have five dollars for his day's work. She said: 'I am willing to pay the retainer fee, the charge you make, and your expenses.' It was under that agreement that I took the lady's case. I completed the bill of complaint--read it over to her.' It is his claim that after he commenced the cases he had a further talk with her about his fees, and what she could probably recover in the two cases, and the fact that defendant before this had litigation with her husband, which she settled without paying her lawyers. 'I said: 'In my opinion, you ought to have about $3,600 in the chancery case. That would be my best judgment; but,' I said, 'they have talked a settlement of $2,000. Will you take that?' She said: 'No; I won't take $2,000. It isn't enough.' I said: 'Would you be willing to use $2,000 in the divorce case as the minimum sum that you would accept in settlement, and a thousand dollars as the minimum sum that you would accept as a settlement in your assault and battery case, in case you should discontinue your suits, and figure up twenty-five per cent. on that, which is to be my pay for the services in this case, providing you discontinue them and settle with your husband as you see fit?' She turned to Mr. Markham and said: 'What would that amount to?' Mr. Markham took a piece of paper and figured it. He said it would be $750. She said: 'For both matters?' I said: 'Don't figure them together. I with to keep them separate. The law case is one case, and the chancery case is another. That would be two hundred and fifty dollars for the law case, and five hundred dollars for the divorce case, on the minimum sum of one thousand dollars for the law case, and two thousand dollars for the chancery case.' She says: 'Yes; that is all right.' Then she said: 'Mr. McCurdy, you spoke about a retainer fee.' I said: 'Yes; I told you that I would make that right.' I said, 'If this is satisfactory--if satisfactory to you as far as the retainer...