Thomas v. Turner's Adm'r
| Citation | 87 Va. 1,12 S.E. 668 |
| Parties | Thomas . v. Turner's Adm'r et al. |
| Decision Date | 06 November 1890 |
| Court | Virginia Supreme Court |
Attorney and Client—Contract for Fees— Validity.
Code Va. 1873, c. 160, § 11, which provides that "an attorney shall be entitled as a fee to the amount which the clerk is authorized to tax in the bill of costs in any suit or for any service as such attorney, but any contract made with an attorney for other or higher fees shall be valid, and may be enforced in like manner with any other contract, " authorizes an attorney to contract with his client for fees after the relation of attorney and client is established, and the validity of such contract is determined by the same rules that apply to other contracts. Per Lacy, J., dissenting.
For majority opinion, see ante, 149.
I do not concur in the opinion of the majority, and, as my dissent goes to the construction of an important statute of this state, I will briefly explain its grounds.
The estate devised was in amount about $50,000 as the record discloses. Claims were urged against it by suits amounting to its full value, or nearly so. The beneficiary under Lemuel Turner's will was his former slave, and her whole interest under this will was in jeopardy. John T. Dillard, the executor named in the will, qualified as such in February, 1879; and, while the suit of Narcessa E. Dillard was pressed against the estate of Lemuel Turner, deceased, having been brought about the time of his death, under circumstances explained fully in the late case in this court of Turner's Adm'r v. Dillard, 82 Va. 536, nothing was done to defend the estate against demands which were to its full value. The appellant in this case, who was entitled to the estate which should remain after the payment of its debts, understood her interests sufficiently well then to seek out the appellee the Honorable Thomas P. Fitzpatrick, an able and successful lawyer of the county, and solicit his professional services in her behalf. She was without money to pay fees, and whatever compensation her counsel should receive if he undertook to serve must necessarily be wholly contingent; and, while she was not able to pay him anything in advance, she offered and agreed to pay him, in the event of a successful issue, all of the estate except the " Bob Creek " farm, upon which she lived. That she so agreedis proved by the appellee in the record, and admitted by her. The appellee, for reasons not appearing in the record, succeeded in having Dillard removed as executor, and procured the appointment of himself as administrator de bonis non. The work of defending this estate from the assaults of the disappointed relatives of the testator, who was a bachelor, then commenced in earnest, with the assistance of other able counsel, and was so far successful that recoveries were defeated as to all of these claims except $18,000, for which decree was rendered by the circuit court of Nelson county. But the appellee appealed to this court, where the said appellant was completely successful, and the suit of the Dillards was dismissed for reasons stated in the case of Turner's Adm'r v. Dillard, supra. The litigation having now ended, the appellee called upon her (the appellant) not to comply with her original agreement before the work began, but took from her a very much smaller assignment, as is set forth in the opinion of the majority in full. This she readily and cheerfully agreed to do, and expressed her thanks and her gratitude that the appellant (her counsel) had been so liberal with her. Camp, the witness, does say that he understood the fee was to be $5,000, but he does say that he paid very little attention to the details of the matter, and that he did not charge his memory with it. But he also says: He further says tne appellee "showed every disposition to make the matter perfectly clear to her; frequently, while it was being read to her, would have the reading stopped, and would explain to her; and he seemed very desirous that she should understand every part of the contract before signing the same." And, further, that he had known the appellant from her birth, and that he had always considered her a person of good mind.
Now here we have a contract entered into freely and voluntarily, after full explanation, by a person of good mind and understanding, for a valuable consideration. And this was acquiesced in until, applying to her trustee for money, the appellant was refused any payment because the interest up to 1890 had been assigned to her said counsel; and she then and subsequently declared that she did not understand the contract she had made. This contract was enforced by the learned judge of the circuit court, but by the opinion of the majority it is set aside, because by an "equitable and wisely established rule, which applies to such cases, " "all dealings between attorney and client, for the bene fit of the former, are not only regarded with jealousy, and closely scrutinized, but they are presumptively invalid on the ground of constructive fraud, and that presumption can be overcome only by the clearest and most satisfactory evidence." My opinion is that there is no such rule established in Virginia, whether it be equitable or inequitable, wise or unwise; but that by the mandate of express statute, an attorney at law is entitled to the benefit of his contract with his client for his fee, exactly like any other person claiming under any contract is entitled to the benefit of his contract, which is honestly and fairly entered into, without deceit or fraud; and that no other nor greater burden is placed upon an attorney contracting with his client by the law than is placed on any and all other persons making contracts. Here is the law in our Code upon the subject of attorney's fees, (section 11, c. 160, Code 1873,) in force at the time this contract was made: Now, what does this mean? Any contract with an attorney to be enforced in like manner with any other contract? We are told in the opinion that all dealings between attorney and client for the benefit of the former are presumptively invalid on the ground of constructive fraud. A contract for other and higher fees is certainly one for the benefit of the attorney, but the law says that shall be valid, and that it shall be enforced in like manner with other contracts. This statute is still the law in Virginia. It was somewhat amended in the report of the revisors, (section 3239, c. 155, p. 736, of the printed report of the revisors to the legislature,) and was adopted as proposed by these gentlemen by the legislature. It is now as follows: ...
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