Tennant v. Fawcett

• Decision Date: 25 October 1900
• Parties: TENNANT v. FAWCETT.
• Court: Texas Supreme Court

Page 824

58 S.W. 824

TENNANT v. FAWCETT.

Supreme Court of Texas.

October 25, 1900.

Error to court of civil appeals of Third supreme judicial district.

Action by L. S. Fawcett against J. H. Tennant. From a judgment of the court of civil appeals affirming a judgment for plaintiff (55 S. W. 611), defendant brings error. Reversed.

L. B. Moody, for plaintiff in error. W. C. Oliver and L. S. Fawcett, for defendant in error.

GAINES, C. J.

The plaintiff in the court below (the defendant in error in this court) sued the defendant (the plaintiff in error here) to recover the reasonable value of certain services as an attorney at law rendered by the former for the latter. The defendant made defense on the ground that the services were rendered under a special contract, in which it was agreed that, in case the defendant should employ the plaintiff, and no fee was agreed upon in advance, the defendant should only be liable for such sum as he himself should fix as compensation for the services; and that he had fixed the amount of the compensation, and had paid the same. The court charged the jury, in effect, that, if the plaintiff rendered the services for the defendant alleged in his petition, and the compensation for such services was not agreed upon in advance, then that they would allow the plaintiff such sum or sums as the services were reasonably worth. We are of the opinion that the charge was erroneous. Should one agree to render a service for another gratuitously, it would seem that he could not recover for the service, for the reason that there is no promise, express or implied, to pay for it. The law would not impute a promise to pay where there was a distinct understanding that nothing should be paid. So one might be desirous of having a service performed, but be unwilling, under the circumstances, to pay its reasonable value, or to stipulate in advance for the payment of any definite sum, and might agree with another not to pay either a stipulated sum or the reasonable value of the work, but to pay merely such sum as he might see proper to pay. It would be unjust in such a case to hold him bound absolutely to pay the reasonable value of the services. We think the authorities hold that in such a case, should he fix the compensation in good faith, no more can be recovered than the amount so fixed. In Butler v. Mill Co., 28 Minn. 205, 9 N. W. 697, the court say: "We think the judgment as rendered is correct. The contract was clear and unambiguous. The stipulation that the amount of the compensation should depend upon the judgment and decision of the employer may have been an undesirable one for the plaintiff to consent to, but he nevertheless chose to accept the employment on those terms. The contract was an entirety, and of...