Kikuchi v. Ritchie , 202 F. 857 ( 1913 )

GILBERT, Circuit Judge

(after stating the facts as above).

Error is assigned to the order of the court overruling the demurrer, and to the instructions of the court to the jury whereby they were told that the contract contemplated that the defendant in error, if the case went to the Circuit Court of Appeals, should represent the plaintiff in error in that court.

The first clause of the agreement, whereby the defendant in error was retained as proctor and attorney “in all matters arising out of the alleged law violation,” evidently refers only to the various services that were to be rendered in the District Court which were thereafter in the agreement specified, and not to services in an appellate court in case of an appeal. Kamm v. Stark, 1 Sawy. 547, Fed.Cas.No.7,604; Berthold v. Fox, 21 Minn. 51; Hillegass v. Bender, 78 Ind. 225. It is not disputed that for all those services the defendant in error has received the compensation which was agreed upon. His right to recover in the present action depends upon the construction to be placed upon the final clause, which is: “If the forfeiture case goes to the appellate courts said attorney is to receive such further compensation as may be agreed on with the owner.”

The general rule as to damages in cases of breach of contract for personal employment is that the employee can recover only the difference between what he received or might have received from others and the price agreed upon. But the contract of employment of an attorney by a client is recognized as an exception to the rule. One reason for the exception is that such service is not easily partible or apportioned to the time or the labor performed or to be performed by the attorney. Another reason is that often the most difficult and valuable services of the attorney to his client are rendered in advising him of his legal rights before any papers are prepared or appearances made in court. Another is that by the contract the attorney loses the possible opportunity of employment by the adversary party. Many cases hold that where, after preliminary services have been rendered under such a contract, the client without valid excuse discharges the attorney, the latter is entitled to recover the full contract price. Kersey v. Garton, 77 Mo. 645; Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108; Walsh v. Shumway, 65 Ill. 471; Carter v. Baldwin, 95 Cal. 475, 30 P. 595; Moyer v. Cantieny, 41 Minn. 242, 42 N.W. 1060; Myers v. Crockett, 14 Tex. 257; Weeks on Attorneys at Law, § 366. But if it were conceded that the defendant in error here had a contract to render services on the appeal, none of the reasons on which the foregoing decisions are based would apply to the present case, for the contract was broken by renunciation before anything was done and before performance became due. The instrument, in referring to services on appeal, referred entirely to services that were to be rendered in the future. . . There is no allegation in the complaint that the plaintiff ever did render any services on the appeal. He rested his right j to recover wholly upon the breach of his alleged contract' for future services. In such a case the general rule should ¡ apply that the adverse party may recover only the damages occasioned by the breach, and not the value of the services which he would have been called upon to render in the > future.

But as we read the agreement between the parties there was no contract with reference to any services to be rendered by the attorney after the final judgment in the Dis- ! trict Court. The subject of the services to be rendered by ‘ him in case of an appeal was one upon which the minds of < the contracting parties never met. The instrument shows that as to the appeal there was no present intention upon the part of the plaintiff in error to assume liability. Agreement is the essential element of every genuine contract. The' teruis thereof must be complete. Here there was no bind-. ing promise on the part of the attorney to render services and no promise on the part of the client to pay therefor. The matter of such subsequent employment and services, as well as the amount of the attorney’s compensation, was by the instrument left open to future agreement. There is no ground for holding that the client thereby assumed liability for the payment of reasonable attorney’s fees on the appeal. He never assented to that. He reserved the right, if he should thereafter call upon the defendant in error to take an appeal, to have the amount of his liability for attorney’s fees first fixed and agreed upon, and therewith he reserved the right to reject the services if no agreement were made. An instrument which leaves the amount of compensation to be determined by subsequent negotiation is not complete. Wardell v. Williams, 62 Mich. 50, 28 N.W. 796, 4 Am.St.Rep. 814; Gunn v. Newcomb, 82 Iowa, 468, 48 N.W. 989. The plaintiff in error so understood the contract in this case and called upon the defendant in error to render no service on the appeal, but engaged other attorneys.

The judgment is reversed, and the cause- is remanded, with instructions to sustain the demurrer to the complaint.