P
& Son, attorneys, contract, in writing, with L. as
follows: " It is agreed that P. & Son are to receive
one hundred dollars certain and if the suit (referred to and
mentioned in the agreement) is decided in favor of L. then P
& Son are to receive two hundred dollars, making three
hundred in all."
P
& Son bring an action of assumpsit, setting forth the
agreement and alleging that L. dismissed said suit without
their consent and thereby hindered P. & Son from
prosecuting said suit to a final decision, although
plaintiffs were willing and ready so to do. The declaration
also contains the common counts for work and labor, and upon
an account stated.--HELD:
1. Upon
a demurrer to the declaration, and to each count thereof, the
same are sufficient.
2. That
P. & Son are not necessarily entitled, upon issue joined
on a plea of non-assumpsit, in addition to the $100 certain
named in the contract, to recover the whole amount of the
contingent fee therein specified; but for breach of said
contract, by defendant, may recover such damages, by way of
compensation for their time, labor and attention, as these
are reasonably worth; as well, also, for any loss or injury
they may have sustained; provided the whole recovery
shall not exceed the entire amount stipulated in the
contract.
An
appeal from the judgment of the circuit court of Mason county
rendered, upon the verdict of a jury, on the 30th day of May
1871, in a suit at law, pending in said court, wherein Daniel
Polsley and Daniel W. Polsley, partners in the practice of
law, under the firm name of Polsley & Son were plaintiffs
and Lewis Anderson, defendant.
On the
23d day of December, 1870, the plaintiffs instituted an
action of trespass on the case in assumpsit against the
defendant and the writ was returnable to the January rules
then next following. At these rules the plaintiff filed his
declaration.
The
first count alleged " that, whereas,
heretofore, to-wit, on the 4th day of August, 1868, at the
county aforesaid, the said defendant, in consideration that
the said plaintiffs and William H. Tomlinson, Esq., at the
special instance and request of said defendant, had then and
there agreed with the said defendant that they and the said
William H. Tomlinson, Esq., as attorney-at-law, would
prosecute a suit in chancery, pending in the circuit court of
Mason county, West Virginia, on the chancery side of said
court, wherein the said defendant was plaintiff, and the
heirs-at-law of John Anderson, dec'd, were defendants,
for the enforcement of a special performance of a contract
for fifty acres of land, entered into between the said John
Anderson in his lifetime, and the defendant: He, the said
defendant, then and there agreed that the said plaintiffs and
the said William H. Tomlinson, Esq., should receive for their
legal services one hundred dollars each, certain (meaning
thereby that the said D. Polsley & Son should receive one
hundred dollars, and the said Tomlinson one hundred dollars
from the said defendant), and that if the said suit was
decided in favor of the said Lewis Anderson, the defendant,
that then the said Polsleys and Tomlinson were to receive
from the said defendant three hundred dollars each (meaning
thereby that the said D. Polsley & Son should receive
three hundred dollars, and the said Tomlinson three hundred
dollars from the said defendant), in all six hundred dollars.
The plaintiffs now aver that in consideration of the said
promise, agreement and undertaking, that they and the said
Tomlinson, did commence and prosecute the said suit in said
court, and that they did in all respects in that behalf
fulfill and perform their part of said agreement in good
faith; but that while said suit was pending in said court,
and being diligently prosecuted by the said plaintiffs and
the said Tomlinson, he, the said defendant, on his own
motion, did, without the consent of the said plaintiffs, or
said W. H. Tomlinson, cause the said suit to be dismissed,
to-wit, on the _____ day of _____, at the county aforesaid,
and did then and there, by the dismission aforesaid, hinder
and prevent the said plaintiffs and the said Tomlinson from
the further prosecution of the said suit, and did thereby
prevent and render impossible a decision of said suit in
favor of the said defendant. In consideration whereof the
said defendant afterwards, to-wit, on the day last aforesaid,
at the county aforesaid, undertook and faithfully promised
the plaintiffs to pay them the aforesaid sum of $300 on
demand."
The
second count alleged that " the said defendant
was indebted to the plaintiffs in the further sum of $300,
with interest thereon from the 28th day of January, 1870,
until paid, for the work and labor, care and diligence, and
attendance of said plaintiffs as attorneys at law in the said
court, before that time done, performed and bestowed by the
said plaintiffs upon a retainer; at the special instance and
request of the said defendant in and about the prosecuting
and attending to a suit in equity in the circuit court of
Mason county, West Virginia, for the said defendant against
the heirs of John Anderson, deceased; and for certain fees
due, and of right payable, to the said plaintiffs, in respect
thereof. And being so indebted, the said defendant, in
consideration thereof, afterwards, to-wit: on the day and
year aforesaid, at the county aforesaid, undertook, and then
and there faithfully promised the said plaintiffs to pay the
said sums of money aforementioned whenever he would be
thereunto afterwards requested."
The
third count alleges that " the said defendant
afterwards, to-wit: on the day and year last aforesaid,
accounted with the plaintiffs of and concerning divers other
sums of money from the said defendant to the said plaintiffs
before that time due and owing, and then in arrear and
unpaid; and upon said accounting the said defendant was then
and there found to be in arrear and indebted to the said
plaintiffs in the further sum of $300, and being so found in
arrear and indebted, the said defendant in consideration
thereof afterwards, to-wit: on the day and year last
aforesaid, undertook, and then and there faithfully promised
the said plaintiffs to pay them, the said plaintiffs, the
said last mentioned sum of money when thereunto afterwards
requested."
The
fourth count alleged that " for that whereas
heretofore, to-wit: on the fourth day of August, 1868, at the
county aforesaid, the plaintiffs and William H. Tomlinson,
Esq., entered into an agreement in writing with the said
defendant, the date whereof is the day and year last
aforesaid, and signed their names thereto, as did also the
said defendant by J. L. Anderson, his duly authorized agent,
by which agreement it was agreed and contracted by and
between the said plaintiffs and Wm. H. Tomlinson, on the one
part, and the said defendant on the other part, in substance
as follows, to-wit: that the said plaintiffs and Tomlinson,
as attorneys at law, should prosecute a suit in equity in the
circuit court of Mason county, instituted by the said
defendant against the heirs-at-law of John Anderson,
deceased, for the specific performance of a contract for
fifty acres of land entered into between the said defendant
and the said John Anderson, in his life-time; in
consideration whereof, the said defendant agreed to pay the
plaintiffs for their legal service in said suit the sum of
$100 certain; and if the said suit should be decided in favor
of the said defendant, he, the said defendant, further
promised and agreed in the written contract aforesaid to pay
the plaintiffs for their services in said suit the sum of
$300, meaning and intending thereby that he, the said
defendant, would if the said suit should be decided in his
favor, pay to the plaintiffs the aforesaid sum of $300. And
the plaintiffs, in fact, aver that they and the said
Tomlinson did diligently and faithfully prosecute the said
suit in said court from the date of said agreement up to the
_____ day of ________, and did bestow much labor, care and
research in and about the prosecution of the same, and did in
all respects, fulfill and perform their part of said
agreement in good faith, and were at all times ready and
willing and prepared to prosecute the said suit to a final
decision; but that the said defendant, while said suit was
being diligently and carefully prosecuted and managed by the
said plaintiffs and Tomlinson in said court, and on his own
motion, and without the consent of the said plaintiffs or
either of them, caused the said suit to be dismissed from
said court, to-wit: on the day and year last aforesaid, and
did thereby hinder and prevent the said plaintiffs and
Tomlinson from prosecuting said suit to a final decision in
said court, and did thereby discharge the said plaintiffs and
Tomlinson from all promised obligation or contract on their
part to prosecute said suit to a final decision or decree in
favor of said defendant; in consideration whereof the said
defendant afterwards to-wit, on the day and year last
aforesaid, at the county aforesaid, undertook and faithfully
promised the plaintiffs to pay them on demand the last
aforesaid sum of $300, whereby an action hath accrued to the
plaintiffs to have and demand from the defendant the last
aforesaid sum of $300." " "
The
cause was matured at rules and came on the docket of said
circuit court, where, on 22d day of February, 1871, the
defendant appeared and demurred to the plaintiffs'
declaration, and each count thereof, and plead to issue.
On the
28th day of February, 1871, the court overruled the said
demurrer.
On the
25th day of May, 1871, a jury was empanelled in the cause and
" sworn the truth to speak upon...
