Boylan v. Holt ( 1871 )

Sihkall, J.:

The most serious objection urged to the “right” of the executrix of R. S. Holt, deceased, to recover is, that the testator was a party consenting to the tariff of charges agreed to by the members of the Tazoo bar; and that, by the terms of that paper, he has rendered no services to Boylan & Green for which he can make a charge. It may be conceded that clients who had notice of this rate of charges, would be bound by them; would be considered as impliedly consenting to pay at those rates ; and attorneys at law would be regarded as holding themselves out to the public to do professional business on those terms. The rates of charges, too, to which the members of the bar had pledged themselves to each other, is an expression of opinion that they are proper and reasonable. But a client,, who had no notice or knowledge of those rates, would not,, by the mere fact of employing counsel, be held conclusively bound by them. This duty of making remuneration would be the rule of quantum meruit. He could not be shut up by an assumption to pay according to a rate to which he had not, by implication or expressly consented. Let us see how the “ right ” of the plaintiff’s testator is affected by the bar agreement. That paper (which is in the record) classifies the several sorts of services as rendered in the circuit court and in court of chancery, rather as rendered in a common law and chancery court. The first tariff of fees is headed, “in a circuit court;” under this is enumerated only such sort of business as is litigated in a court of law, such as appeals from justices of peace, defenses for crimes, suits for debts, etc. On these, ten per cent on amount collected, two and one-half per cent when the execution is returned nulla bona, is the measure of fees. After a full specification under that head, there follows : “In the chancery court; ” for drawing a bill or answer, hot less than $35 ; for conducting a case throughout, not less than $75, etc., etc. The testimony is, that B. S. Holt, Esq., filed a bill against Gen. W. B. Miles to foreclose a mortgage on lands, and obtained a decree for $72,000, and a little more. The case was taken by appeal to the high court of error and appeals, and, while pending there undecided, it was compromised by the payment of $5,000 down and an agreement to pay $45,000 on a future day. The compromise was made after Mr. Holt’s death. The lands mortgaged are worth as much or more than $50,000.

The argument for the appellants is, that Mr. Holt, deceased, before a sale under the decree, and before the debt was collected; that there was no return of nulla bona, and, therefore, he is entitled, under the bar agreement, to no compensation. The stipulation as to the rate of commissions on money collected, and on insolvent judgments, is to be found under the classifications of services “in a circuit court,” and was evidently meant to be confined to debts collectible by suit at law, and not to debts collectible, or collected by foreclosure of liens in the chancery court. There would be no return of nulla bona on á foreclosure decree, for there is no personal judgment. Such decrees are specifically executed by a sale of the mortgaged property ; and are solvent or insolvent in part, as the yalue of the property may compare with the debt. If the fee of the attorney, under the bar agreement, was not due until a collection of the judgment, or a return of nulla bona, that applies only to legal debts recovered in a court of law, and does not touch suits in chancery, to foreclose liens, where the proceeding is in rem. Moreover, the construction of the agreement as contended for, cannot apply to the chancery court. For the solicitor may make a charge for drawing a bill or answer, or he may charge not less than $75 for carrying the suit through. If the solicitor drafts a-bill and then dies, is there any thing in the bar agreement which prevents his executor from making a demand .for it. He shall not charge less than $35, but may not the executrix recover as much more as it was reasonably worth. We are of the opinion, therefore, that for the professional labor and service performed in the chancery court by the testator, this bar agreement leaves the solicitor free (except he may not go under the minimum), and that his right to remuneration does not depend on his conducting the suit to a close, and collecting the money, unless by special contract he makes the performance of that a condition precedent. Practically, Judge Hudson, one of the witnesses, and a member of the Yazoo bar, put the same construction that we do on this agreement.

The rights of the plaintiff are to be ascertained by the general law, and not by the agreement. The law raises an implication that the employer will make compensation to the employee for services rendered for his benefit. If there be no special contract, then the qioantwm meruit is the measure of remuneration. In Johnson v. Pyles, 11 Smedes & Marsh. 193, the statute of limitations against the attorney’s fee was held to run from the date of the recovery of the judgment, and not from the time an injunction suspending its collection was dissolved, it not appearing that the attorney was retained also as part of a .continuing transaction to defend the injunction suit.

If the defendant in the circuit court had proved a special contract, the rights of both parties would have been determined by it; nor could the plaintiff recover except he had fulfilled the contract, and there was a sum of money due him. Such was the rule laid down in the N. O. J. & G. N. R. R. Co. v. Pressley, Greer & Co., supra, 66.

In a suit to recover for services performed at the defendant’s request, the plaintiff makes out a right to recover upon proof of performance and the value. He may recover for so mufeh as has been done, and, unless a special contract was made, no question can arise as to full performance, or compliance with a condition precedent.

Boylan, one of the defendants, offered himself as a witness, and proposed to testify to facts tending to defeat the claim. The construction put upon the statute is, that if one party is an administrator or executor, the surviving j>arty shall not testify to establish a claim of his own, nor to defeat one preferred against him by the representatives of the estate. Otey v. McAfee, Admr., 38 Miss. 352. There was no error in excluding Boylan.

Nor was it inrproper or impertinent to admit the papers and records of the suit brought by Holt for Boylan and Green against Miles. It was important that the jury should be informed of the character of the suit, the amount involved and all that had been done in it, by Holt, so as to enable them intelligently (in conection with other evidence) to form a correct estimate of the value of the services. But it was competent for another purpose, as tending to show a retainer in employment by the defendant. These papers and records manifested that they were all signed by Holt as solicitor for the parties. The mortgage and notes were exhibited with the bill, and must have come to the hands of the solicitor from his clients. They ■ showed also that the case was pending some time in court; the suit was apparently for the interest of the clients. These facts raise a very strong inference (in the absence of evidence to the contrary) that the litigation was begun and continued by Holt at the instance and request of Boylan and Green. This is made very conclusive by other testimdny that they took benefit under the decree.

The practice in England was for the attorney, before he proceeded with the business, to take from the client a warrant of attorney, which he could be required to produce. That practice does not obtain in this State. The. fact that a suit is brought for a client, apparently for his benefit, is evidence tending' to prove employment. It may, however, be controverted, if it is shown that it was not done at the request of the client, then there was want of authority, and fees cannot be recovered. McKennan v. Patrick et al.,4 How. 335.

Nor was there error in excluding the testimony of Judge Bowman. If Boylan & Grreen employed other solicitors to look after the decree, and the money due upon it, and their rate of compensation was agreed at ten per cent on the amount collected, this could have no effect upon the question of what was fair compensation to Mr. Holt, for what he did.

The instructions of the court in the main conform to these views of the law. The proper rules for the guidance of the jury are laid down in the first and second instructions granted for the plaintiff. The first instruction requested by the defendants was calculated to mislead the jury when applied to the evidence and was properly withheld. The second instruction was properly refused. The third instruction has no evidence to which it may be referred, if the case did not come within the bar agreement. There was no evidence of what was the custom of lawyers. Judge Hudson speaks of his practice as such in similar cases, but does not state it as a custom or usage by which Mr. Holt or any other attorney was bound. The fourth instruction - was properly refused. So was the fifth, because there was no testimony to which it could apply.

The jury were not misled by the court. At all events, in our view of the case, substantial justice has been done.

Judgment affirmed.