Venable v. Block

• Decision Date: 19 March 1976
• Docket Number: 51927,No. 3,Nos. 51882,s. 51882,3
• Citation: 138 Ga.App. 215,225 S.E.2d 755
• Parties: J. R. VENABLE v. Ruth S. BLOCK. Ruth S. BLOCK v. J. R. VENABLE
• Court: Georgia Court of Appeals

Page 755

225 S.E.2d 755

138 Ga.App. 215

J. R. VENABLE v. Ruth S. BLOCK.

Ruth S. BLOCK v. J. R. VENABLE.

Nos. 51882, 51927.

Court of Appeals of Georgia, Division No. 3.

March 19, 1976.

L. C. Chrietzberg, Decatur, for appellant.

Russell L. Adkins, Jr., Marietta, for appellee.

QUILLIAN, Judge.

Plaintiff requested defendant, a lawyer, to represent her in a lawsuit against a firm she alleged injured her in an incident occurring on or about October 16, 1969. Defendant visited her in the hospital and discussed the case with her. Thereafter he filed a damage suit in her behalf in the Superior Court of Fulton County. On September 13, 1972, this case was set down in the Fulton County Daily Report for trial on October 13, 1972. On October 13, 1972, the case was dismissed for want of prosecution, the defendant having failed to appear or to notify plaintiff of the call of the case.

Plaintiff filed this action in two counts. The first count sounded in tort and the second in contract. Both plaintiff and defendant moved for summary judgment as to both counts. After hearing, the judge ordered Count I, sounding in tort, be dismissed and that plaintiff's motion for summary judgment was 'granted as to liability based on Count II of the Complaint.' Defendant appeals, alleging the court erred in granting summary judgment to plaintiff as to count two and denying defendant's motion for summary judgment as to count two.

Plaintiff filed a cross-appeal alleging that the court erred in 'granting cross appellee's motion for summary judgment as to count one of the complaint' and in denying plaintiff's motion for summary judgment as to count one. Held:

1. Defendant admitted in his answer that 'he was engaged by the plaintiff to represent her as alleged . . . (and) he orally agreed to represent (her) upon a contingency basis, . . . but the amount of percentage to be received by defendant was never finally agreed upon.' However, in response to requests for admission by plaintiff, defendant 'specifically denie(d) that he was retained by the plaintiff.' In an affidavit, he stated that there was 'never an agreement as to what, if any, contingency the defendant would have been entitled to.' A party to a suit will not be allowed to disprove an admission made in his pleadings without withdrawing it from the record. Grigsby v. Fleming, 96 Ga.App. 664, 665(1), 101 S.E.2d 217; Florida Yellow Pine Co. v. Flint River Naval Stores Co., 104 Ga. 321, 78 S.E. 900. Defendant has not withdrawn his admissions and he is bound by them. Black's Law Dictionary defines 'engage' as 'to employ,' and 'retain' as 'to engage the services of an attorney.' We find no significant difference between 'engage' and 'retain,' when the definitions are applied to the facts of this case.

2. Defendant contends the purported parol contract was 'nudum pactum,' because he was not paid a retainer and he and the plaintiff 'never came to a meeting of the minds or agreement as to what if any contingency fee for such representation might be.' Plaintiff stated that defendant agreed to represent her on a contingency basis for '1/3 of what he recovered but sometime after the suit had been filed, Mr. Venable told (her) . . . he was only going to take 1/4 of what he recovered.' We find the oral exchange of promises to be sufficient consideration. Code § 20-304; Giant Peanut, etc., Co. v. Long Mfg. Co., 129 Ga.App. 685, 687, 201 S.E.2d 26. The fact that the promises were based on a contingency will not affect its validity as consideration. Byrd v. Clark, 170 Ga. 669, 153 S.E. 737; 17 C.J.S. Contracts § 99, p. 786. However, an alleged contract on which there is no firm agreement as to consideration is unenforceable. Malone Const. Co. v. Westbrook, 127 Ga.App. 709, 194 S.E.2d 619; Charter Invest. etc., Co. v. Urban Medical Services Inc., 136 Ga.App. 297, 220, S.E.2d 784. Although this is the general law on this issue, we find this contract to be enforceable where consideration is admitted and there is disagreement only as to whether there was common agreement as to the specific amount of consideration in a parol contract.

An oral contract is legal and may be enforced by an action at law. Code § 20-106; Norwood v. Robie, 102 Ga.App. 206(1), 115 S.E.2d 729. Where there is a conflict in the evidence as to what the specific terms of an oral contract are, including that of consideration, this is a question for the jury-all other essentials of a valid oral contract being present. Loughman v. Shine, 129 Ga.App. 600(2), 200 S.E.2d 326; Gray v. Plummer, 87 Ga.App. 331, 333, 73 S.E.2d 569. We find all essentials of an oral contract to be present-with only the issue of whether there was agreement on the specific amount of consideration being in dispute. That is a proper issue for the jury.

Further, even if the contract might not have been enforceable, on the ground that it was without consideration and mutuality, partial performance of the contract-the services rendered by defendant, supplied the lack of mutuality and rendered the contract enforceable. Brown v. Floding, 173 Ga. 400, 160 S.E. 604; Stevenson v. Atlanta, etc., Corp., 72 Ga.App. 258, 262, 33 S.E.2d 568, cert. den.; Barnes v. Didschuneit, 94 Ga.App. 661, 664, 96 S.E.2d 216, cert. den.; 17 C.J.S. Contracts § 100(3), p. 799. We have no doubt that if defendant had been successful in his action on behalf of plaintiff he would have had no difficulty in enforcing the contract. Jenkins v. Stephens,60 Ga. 216; Simms v. Floyd, 65 Ga. 719(2); Robinson v. Guerry, 40 Ga.App. 26(2), 148 S.E. 745. A contract must have mutuality of agreement and obligation. 17 C.J.S. Contracts § 1(2), p. 545; 17 Am.Jur.2d, Contracts, §§ 10-11, pp. 345-346. Mutuality of remedy is also a general requisite for formation of a valid contract. See Pepsi-Cola Co. v. Wright, 187 Ga. 723, 727(1), 2 S.E.2d 73; 17 Am.Jur.2d Contracts, § 13, p. 351. If defendant could have enforced the contract, mutuality of remedy requires that plaintiff have the ability to enforce the contract.

3. Judgment was entered in the instant case on October 27, 1975. Notice of appeal was filed with the clerk on November 24, 1975, and counsel's certificate of service on opposing counsel is dated the same day. Plaintiff filed his cross-appeal on January 2, 1976. Counsel for plaintiff filed an affidavit with his cross-appeal stating he did not receive a copy of the notice of appeal from defendant's counsel and had no knowledge of this appeal until receipt of the Docketing Notice from this court on December 29, 1975. Counsel for defendant has filed a 'counter-affidavit' reciting that his notice of appeal was 'true and correct.'

Section 5 of the Appellate Practice Act, Code Ann. § 6-803 (Ga.L.1965, pp. 18, 21), provides that a cross-appeal must be filed 'within 15 days from service of the notice of appeal by appellant.' Plaintiff's cross-appeal was not filed within the requisite 15 days from the date contained in defendant's notice.

Although we have no motion to dismiss by defendant, in every matter coming to his court we are required to examine the record to make certain we possess jurisdiction. Stephenson v. Futch, 213 Ga. 247, 248, 98 S.E.2d 374; Lowe v. Payne, 130 Ga.App. 337, 203 S.E.2d 309. This court has no jurisdiction to hear...