Simon v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 01 March 1920
• Docket Number: 1915
• Citation: 177 N.W. 107,45 N.D. 251
• Court: North Dakota Supreme Court

177 N.W. 107

45 N.D. 251

CHARLES SIMON, Respondent, v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY, a Corporation, Appellant

No. 1915

Supreme Court of North Dakota

March 1, 1920

Rehearing denied March 26, 1920.

Proceedings in District Court, Stark County, Nuessle, J., upon an attorney's lien.

From a judgment in favor of the plaintiff, the defendant has appealed.

Reversed and remanded with directions.

Reversed and remanded. No costs allowed either party on this appeal.

E. L Granthem and Jacobson & Murray, for appellant.

"This right of discharge exists even though a contingent fee has been agreed upon, or an irrevocable power of attorney has been given, or the attorney has rendered valuable services under his employment, or the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action." 6 C. J. 676, §§ 193 677, 678; Schouweiller v. Allen, 17 N.D. 510; Gage v. Atwater, 136 Cal. 170, 68 P. 581; Price v. Western Loan, etc., Co. 35 Utah 379, 100 P. 677; Henry v. Vance, 111 Ky. 72, 81, 63 S.W. 273; Crosby v. Hatch, 155 Iowa 312, 316, 135 N.W. 1079.

Where the complete performance of an attorney's services has been rendered impossible, or otherwise prevented, by the act of his client, the attorney may, as a general rule, recover on a quantum meruit for the services actually rendered, or he may have an action for damages.

6 C. J. pp. 724, 725, §§ 292, 293; Such v. New York State Bank, 121 F. 202; Union Surety Co. v. Tenney, 102 Ill.App. 95, 65 N.E. 688; French v. Cunningham, 149 Ind. 632, 49 N.E. 797; Henry v. Vance, 111 Ky. 72, 63 S.W. 273; Philbrook v. Moxey, 191 Mass. 33, 77 N.E. 520; Cosgrove v. Burton, 104 Mo.App. 698, 78 S.W. 667; Foley v. Klienschmidt, 28 Mont. 198, 72 P. 432; Harris v. Root, 28 Mont. 259, 72 P. 429; Haire v. Hughes, 127 A.D. 530, 111 N.Y.S. 892, 90 N.E. 1159; Whitesell v. New Jersey R. Co. 68 A.D. 82, 74 N.Y.S. 217; O'Niell v. Cranee, 65 A.D. 358, 72 N.Y.S. 812; Bryant v. Brooklyn Heights R. Co. 64 A.D. 542, 72 N.Y.S. 308; Naumer v. Gray, 41 A.D. 361, 58 N.Y.S. 476; Seasongood v. Prager, 70 Misc. 490, 127 N.Y.S. 482; Yuells v. Hyman, 84 N.Y.S. 460; Rogers v. O'Mary, 95 Tenn. 514, 32 S.W. 462; Southern Nat. Bank v. Curtis (Tex. Civ. App.) 36 S.W. 911; Sheridan County v. Hanna, 9 Wyo. 368, 63 P. 1054; Riehl v. Levy, 45 Misc. 425, 90 N.Y.S. 411; Schmitt v. Curtiss, 72 Wash. 211, 130 P. 89.

"The lien of an attorney entitled him to recover for his own personal services only, and not for the services of another employed by him to assist. " 6 C. J. p. 770, § 368, p. 771; Weaver v. Cooper, 73 Ala. 318; Kauffman v. Phillip, 154 Iowa 542, 134 N.W. 575; Gibson v. Chicago R. Co. 122 Iowa 565, 98 N.W. 474; Lynn v. Agnew (N.Y.) 166 N.Y.S. 274; Martin v. Camp, 219 N.Y. 170, 114 N.E. 46; DeAngelis v. Savings Bank, 132 N.Y.S. 295; Corcoran v. Kellogg Struct. Co. 166 N.Y.S. 269.

A solicitation of a case or promise of payment of money for the case by an attorney defeats his right to an attorney's lien. Holloway v. Dickenson (Minn.) 163 N.W. 791; Holland v. Sheehan (Minn.) 123 N.W. 1; Ellis v. Frawley (Wis.) 161 N.W. 364; Anker v. C. G. W. R. Co. (Minn.) 167 N.W. 278.

This kind of an action is an action at law. Sweeley v. Sieman (Iowa) 98 N.W. 571; Barthell v. C. M. & St. P. R. Co. 116 N.W. 813.

W. F. Burnett, for respondent.

"A suitor has the right to discharge his attorney, either with or without reason, at any time during the progress of the litigation which he was employed to conduct, provided his compensation is paid or secured." Dorsheimer v. Herndon (Neb.) 153 N.W. 497; Detroit v. Whittemore, 27 Mich. 281; Moyer v. Cantiney, 41 Minn. 242, 42 N.W. 1060; Sessions v. Warwick (Wash.) 89 P. 482.

"According to the weight of authority, the measure of damages for such breach of contract is the full contract price, especially when the attorney's work is substantially done, unless some other sum has been agreed upon." 6 C. J. 724; Kersey v. Garton, 77 Mo. 645.

"The fact that the settlement was finally made by another attorney does not affect the plaintiff's right to recover." Scheinsohn v. Lemonek, 84 Ohio St. 424, Ann. Cas. 1912C, 737; McGowan v. Parish, 285 U.S. 300, 59 L.Ed. 955; Larned v. Dubuque (Iowa) 53 N.W. 105; Countryman v. California Trona Co. (Cal.) 170 P. 1072; Re Carney, 158 N.Y.S. 585; Comp. Laws 1913, § 6875; Greenleaf v. Soo, 30 N.D. 112; Greenleaf v. Mpls. St. P. & St. Ste. M. R. Co. 30 N.D. 112; O'Connor v. St. Louis Transit Co. 198 Mo. 622, 115 Am. St. Rep. 495, 8 Ann. Cas. 703; Grand Rapids & I. R. Co. v. Cheboygan Circuit Judge (Mich.) 126 N.W. 56; Zentmire v. Brailey (Neb.) 130 N.W. 1047; Lewis v. Omaha St. R. Co. (Neb.) 114 N.W. 281; 2 R. C. L. § 171, p. 1080; Cheshire v. Des Moines City R. Co. 153 Iowa 188, 133 N.W. 324.

"It is only by virtue of statutory provisions that a court of law has jurisdiction to enforce an attorney's lien, and, in the absence of such statutes, the proper method for enforcing such lien is by resort to equity." 2 R. C. L. 1085; Fillmore v. Wells, 10 Colo. 228, 3 Am. St. Rep. 567, 15 P. 343; Alexander v. Monroe, 54 Ore. 500, 135 Am. St. Rep. 1040, 101 P. 903, 103 P. 514.

The rights of the attorney, under his lien, are those of an equitable assignee. Warfield v. Campbell, 38 Ala. 534; Ely v. Cooke, 28 N.Y. 365; Perry v. Chester, 53 N.Y. 240; Marshall v. Meech, 51 N.Y. 140; Rooney v. Railroad Co. 18 N.Y. 368.

Where notice of a lien is given, and before trial and judgment the parties settle the case and the suit is dismissed, the attorney may maintain a separate action to recover the amount due upon his lien, and in such action the client is not a necessary party. Story, Eq. Pl. P 211; Barber, Parties, 456; Bell v. Lake County, 141 P. 861; Louisville & N. R. Co. v. Procter (Ky.) 51 S.W. 561; Yonge v. St. Louis Transit Co. (Mo.) 84 S.W. 184; 4 Cyc. 1017; Davidson v. Board of Comm. (Colo.) 59 P. 46.

An attorney's lien may be foreclosed in an equitable action whether it is an attorney's lien at statute or common law. Fillmore v. Wells (Colo.) 3 Am. St. Rep. 574; Parsons v. Hawley (Iowa) 60 N.W. 520; Wetherby v. Weaver (Minn.) 52 N.W. 970; 6 C. J. p. 802, P 422; 4 Cyc. 1020, 1022; Taylor v. St. Louis Transit Co. 198 Mo. 715.

BRONSON, J. GRACE, J., concurs, ROBINSON, J., concurring in the result. BIRDZELL, J., CHRISTIANSON, Ch. J., dissenting.

OPINION

BRONSON, J.

This is a proceeding upon an attorney's lien. On November, 16, 1916, the plaintiff, an attorney, made a contract with one Franz, to prosecute an action against the defendant for injuries received by Franz upon a contingent-fee basis. The contract provided for a fee of 25 per cent contingent upon the amount recovered in suit or settlement, after deducting certain costs and expenses.

Pursuant thereto, on November 23, 1916, such attorney instituted an action against the defendant in behalf of Franz, and served notice of his attorney's lien. This action was thereafter removed by the defendant to the Federal court. Subsequently, Franz made another contract with Jacobson & Murray, attorneys at law, for the prosecution of the same action. This contract provided for a contingent fee of 33 1/3 per cent of the amount to be recovered in suit or settlement, and further provided that no settlement should be made by Franz without the consent of his attorneys. Such attorneys thereupon prepared a formal dismissal of the action already instituted in behalf of Franz; the same was signed by Franz and forwarded to the clerk of the Federal court. Thereupon another action was commenced in the Federal court, against the defendant, upon the same cause of action.

In May, 1919, the subject-matter came up for the consideration of the Federal court, both actions appearing upon the calendar. Upon proceedings had in the Federal court, the action was dismissed on an order entered by the court that the amount of the contingent fee, provided for the plaintiff herein, be retained by the defendant pending the further order of the court. Thereupon, the second action was settled for the sum of $ 11,000, subject to the provision that the defendant should protect itself by retaining sufficient funds or by means of indemnification against the lien of the plaintiff herein. Settlement was made by payment of the money through the First National Bank of Mott, apparently upon an express understanding, or through an undertaking of indemnity, for the retention of sufficient moneys to protect the defendant upon plaintiff's lien.

This action was instituted to recover the amount of such lien, to wit, $ 2,750, from the defendant.

In the trial court the action was tried to the court, a jury trial being refused, and, pursuant thereto, upon findings of the court, judgment was entered in favor of the plaintiff for $ 2,750, with interest and costs. This appeal is from the judgment rendered, and a demand is incorporated for a review of the entire case.

Plaintiff's action is founded upon a lien accorded by statute. Comp. Laws 1913, § 6875. To enforce this lien necessarily he must seek to foreclose it as provided by statute Comp. Laws 1913, § 6878. This court has jurisdiction over the enforcement of this lien and the parties. Scharmann v. Union P. R. Co. 144 Minn. 290, 175 N.W. 554.

Franz had the undoubted right to discharge the plaintiff as his attorney, either with or without reason. Schouweiler v Allen, 17 N.D. 510, 516, 117 N.W. 866. He had the further undoubted right to settle, or compromise the action involved, without the consent of the plaintiff. Paulson v. Lyson, 12 N.D. 354, 97 N.W. 533, 1 Ann. Cas. 245; Southworth v. Rosendahl, 133 Minn. 447, 3 A.L.R. 468, 158 N.W. 717. Accordingly, after the dismissal of the plaintiff as an attorney, his contract for services was both executory and...