Scheinsohn v. Lemonek

• Decision Date: 30 June 1911
• Docket Number: 12010
• Citation: 84 Ohio St. 424,95 N.E. 913
• Parties: Scheinesohn v. Lemonek.
• Court: Ohio Supreme Court

95 N.E. 913

84 Ohio St. 424

Scheinesohn v. Lemonek.

No. 12010

Supreme Court of Ohio

June 30, 1911

Attorney to have a percentage of an account for collection - Entitled to agreed amount where client takes account from attorney - Attorney's right of action on contract - Error for court to instruct jury - It may consider nature of attorney's services - Contract law.

1. Where an attorney at law accepts an account for collection with an agreement that he is to have as compensation twenty-five per cent. of the amount collected, and the client, without sufficient cause, and without giving the attorney a reasonable time to make collection, wrongfully takes the account out of the hands of the attorney, a right of action for such breach of contract accrues at once in favor of the attorney, and upon establishing by proof that the account was a collectible claim, is entitled to recover damages. The measure of damages is not what is finally collected on the claim by some one else, but is the rate of compensation fixed by the contract.

2. In a suit to recover generally for attorney's fees for professional services claimed to have been rendered by plaintiff for defendant, it is error for the court to instruct the jury that if they "find the plaintiff rendered services for defendant at his request, and the service was of value to him you can take into consideration in that matter the nature of the service, and benefits that he has derived therefrom, or might have derived therefrom."

The controversy out of which the present proceeding in error arises was commenced in the court of a justice of the peace of Hamilton county, by the defendant in error against the plaintiff in error, and thence appealed to the court of common pleas of that county. The petition on appeal declared in general terms upon a claim for professional services alleged to have been rendered as an attorney at law of the value of three hundred dollars, without stating what the services were. The answer admitted that defendant below employed plaintiff below to do some work for him for which he agreed to pay plaintiff one dollar and a half, which he offered to pay and is willing to pay, but which plaintiff refused to accept, and denied that defendant is indebted to plaintiff in any other sum. The allegations of the answer with respect to agreement that defendant was to pay plaintiff the sum of one dollar and a half, and that such a sum was offered, were denied by the reply.

At the trial evidence was given by plaintiff tending to show that services were rendered by him in three matters, one known as the Glassmeyer matter of the value of twenty-five dollars the same relating to the completion of a building contract. Another known as the Toohy matter, the evidence tending to show that a claim for two hundred and sixty dollars against Sarah Toohy was placed in plaintiff's hands for collection by defendant, but that the same was taken out of his hands by defendant before plaintiff had collected any of said sum, and defendant had agreed to pay plaintiff twenty-five per cent. of the amount he should collect. In the third matter, known as the Adams matter plaintiff's evidence tended to show that plaintiff had rendered services in relation to a certain alleged blackmailing letter received by defendant; that he had consulted with defendant for several hours on different days and had obtained an affidavit from the writer exonerating defendant.

On defendant's part evidence was given tending to show that the only service rendered by plaintiff in the Glassmeyer matter was to write a letter, for which he offered plaintiff a dollar, but the same was refused on the ground that defendant was a regular client. Also testimony tending to show that in the Toohy matter plaintiff did not collect any of the amount due and that he gave up the account and refused to collect it. Also, that in the Adams matter, he had consulted plaintiff only in reference to a collection demanded from Adams, a letter having been received by defendant to the effect that if credit were not given the writer, trouble would be made defendant; that defendant did not employ plaintiff to secure any affidavit from Adams, but that plaintiff suggested the obtaining of a statement from Adams which he said would cost one dollar, and forty cents notary's fee; that defendant offered plaintiff one dollar and a half, but plaintiff then demanded five hundred dollars.

The jury returned a verdict for the plaintiff below in the sum of one hundred and eighty-six dollars. Judgment was thereupon entered for plaintiff which was affirmed by the circuit court. Scheinesohn brings error.

Messrs Hoffman, Bode & LeBlond, for plaintiff in error.

When a court charges, or attempts to charge on any matters which are at issue in the pleadings, it should charge fully on that subject and not leave the charge misleading or misdirecting so that a jury would fail to get a full understanding of the law in the case, and that in this charge the court should have pointed out to the jury what constituted a reasonable opportunity to perform the employment for which he was hired. It should have charged that the jury should consider what services were performed in the matter, what benefit the client received by reason of those services, and having touched on the point in part it was an error for the court to fail to properly instruct the jury on all the law applicable to the case. Haish v. Payson, 107 Ill. 365; Savings & Loan Co. v. Haley, 8 N. P., 557; Gas Co. v. Wiler, 1 N. P., N. S 277; Christy v. Douglas, Wright, 485; Selover v. Bryant, 54 Minn. 434; Holmes v. Holland, 29 W. L. B., 115; Kittredge v. Armstrong, 28 W. L. B., 249; 3 Am. & Eng. Ency. Law (2 ed.), 419; People v. Supervisors, 45 N.Y. 202; Reves v. Hyde, 14 Daly (N. Y.), 431.

We submit on authority of these decisions that the court having attempted to charge on the facts, should have charged fully, and that having failed to do so, and having included in his charge that the attorney was entitled to receive fees according to the benefit to be derived therefrom by the client, or which he might have derived therefrom, has put a purely speculative case to the jury whereby they were misled, and it makes no difference whether in fact they were misled or not, the charge is erroneous. Lowe v. Lehman, 15 Ohio St. 179; Insurance Co. v. Reed, 33 Ohio St. 283; Insurance Co. v. Sherlock, 25 Ohio St. 50; Jones v. Bangs, 40 Ohio St. 139; Rapp v. Becker, 4 C. C., N. S., 139.

Mr. Frank Seinsheimer, for defendant in error.

There being no question in the case as to the fact that services were rendered as appears from the pleadings, the court was correct in its statement to the jury that "as there is no question made as to the plaintiff's rights to sue, or that the services were rendered, you will direct your attention," etc.

The plaintiff in error has contended in his brief that there was a question as to whether or not services were rendered; but the pleadings show to the contrary and as there is no bill of exceptions here containing the evidence, we are left to judge this from the pleadings alone.

The entire contention made before this court is that there was error in the charge of the court; no bill of exceptions containing the evidence is before the court. Lalond v. Toledo, 6 C. C., N. S., 241.

Unless therefore the court was in error in its statement of some abstract principle of law, this court will not review the charge for the reason that no evidence being before this court the charge can not be applied to the facts which were shown to exist.

Again it will be noted that parts of the charge only are taken and considered, while it is a rule of law that the charge must be taken as a whole. Church v. Wilson, 9 C. C., N. S., 636; Railroad Co. v. Weinstein, 16 O. F. D., 365.

It has been held in a long line of decisions that if an erroneous instruction is given it must have been prejudicial to warrant a reversal. Berry v. State, 31 Ohio St. 219; Banning v. Banning, 12 Ohio St. 437; Fuller v. Coats, 18 Ohio St. 343; Railroad Co. v. Strader & Co., 29 Ohio St. 448; Baird v. Telephone Co., 10 C. C., N. S., 163; Way & Co. v. Langley, 15 Ohio St. 393.

SPEAR C. J.

Objection is made by defendant in error that the bill of exceptions in the record does not contain and does not purport to contain all the evidence given at the trial, and that therefore there is nothing in the record that a reviewing court can review. We think the conclusion does not follow. There appears to be enough in the bill of exceptions to raise the questions of law which are sought to be raised, although the bill is not of such character as to warrant a review of the case upon the evidence.

The principal error urged in this court relates to the charge of the court to the jury. Among other instructions the court gave to the jury the following:

"As there is no question made as to the plaintiff's right to sue or that the services were ren- dered you will direct your attention as to what if any agreements were made between the plaintiff and the defendant as to the amount of compensation for the first and third items and as to the second item as to whether the plaintiff abandoned the collection or whether the defendant took it out of his hands.

"If you believe from the evidence that the plaintiff performed for, or rendered to the defendant legal services and that there was an agreement between them either before or after they were performed as to the price of compensation for such services then the plaintiff has a right to recover for such services at the agreed price and no other. If the defendant took a claim out of the plaintiff's hands without giving him a reasonable opportunity to collect the same he is entitled to recover...