Bowers v. Jones , 124 Miss. 57 ( 1920 )

Sam C. Cook, J.,

delivered the opinion of the court.

This case is an attachment in chancery instituted by appellant, Bowers, a lawyer, hereinafter called complainant, against appellee Mrs. Jones, a nonresident, hereinafter called defendant. The cause of action was a quantum meruit demand for the recovery of a fee for professional services rendered defendant by complainant.

The defense was two-fold: First, it was claimed by defendant that she never became the client of the complainant, and, second, that if she did become his client the contract of employment was made on Sunday and therefore nonenforceable.

The chancery court in the case at bar adjudged and found that there wás a contract between the parties by which defendant employed complainant to render her the professional services mentioned in the bill of complaint, compensation for which is sought by the suit; its final decree recites that the court “is of the opinion that the contract was made,” adjudging, however, that it was made on Sunday, and the trial court dismissed the bill of complaint because the contract of employment was found by the chancellor to have been made on the Lord’s Day.

The facts are: The late Joseph T. Jones, of Gulfport, died testate leaving a large real and personal estate of greater value than ten million dollars. More than half of this estate, called his Southern properties, was located in Mississippi, and the balance, called his Northern property, was situated in New York and states above the Ohio and Potomac rivers. The whole of his estate was bequeathed and devised jointly to his widow, defendant and appellee in this cause, and to Mrs. Grace Jones Stewart, his daughter. Mrs. Stewart instituted a partition suit in the chancery court of Harrison county, this state, against the decedent’s Avidow, the defendant and appellee herein, seeking to have partitioned between them the property of the decedent situated in this state, of the value of not less than five million dollars. A receiver was applied- for and appointed in said suit to manage a part of the property pending the suit. Shortly after the institution of the above-mentioned suit, Mrs. Jones, defendant and appellee in this case, who resided in Buffalo, N. Y., wrote complainant and appellant Bowers, a letter of date December 30, 1918, containing the following inquiry, the only part of it at all pertinent to this suit:

“As I am having considerable difficulty with Mr. Stewart (husband of the complainant in the partition suit), who is insisting that my daughter (the complainant in said suit) have a division of the property, I would like to know if you would be willing to act as my laAvyer if I need you. . . . Will you please telegraph me your decision at my expense.”

.To this letter Mr. Bowers at once replied by telegraph as requested, informing Mrs. Jones that he would be glad to represent her in and about the subject-matter mentioned in her letter to which his telegram was a reply. Upon or shortly after the reception of the telegram, Mrs. Jones, defendant and appellee, wrote Mr. Bowers a second letter, of date January 4, 1919, wherein she thanked him for being willing to render her professional services as mentioned in her first letter to him, thereby showing that she received his dispatch. The letter concluded with a statement that she would leave Buffalo for Gulfport on Monday or Tuesday following its date and that she would be glad to see Mm (Bowers) on her arrival at Gulfport and talk over the matter fully with him before making any definite decision. None of the aforesaid communications were written or made on a Sunday.

Thus matters stood, save that appellant, Bowers, had examined and familiarized himself with the record in the partition receivership case, until one Sunday morning, shortly afterwards, Mr. Bowers happened to be in the lobby of the Great Southern Hotel in Gulfport, standing near the elevator, when Mrs. Jones, accompanied by a lawyer from Buffalo, N. Y., stepped out of the elevator, and thus Mrs. Jones and Mr. Bowers casually and unexpectedly met. Their greetings were cordial and Mrs. Jones at once requested Mr. Bowers and the New York lawyer to go with her to her room for a conference, manifestly meaning one touching the partition and receivership suit. The New York lawyer represented the estate of Jones, the testator, and could not nor did he represent either Mrs. Jones or Mrs. Stewart, the devisees, in any controversy between themselves over a division of the devised property. Mr. Bowers, as any other lawyer would have done under the circumstances, accepted Mrs. Jones’ invitation and he and the New York lawyer accompanied her to her room.

Mr. Bowers had, by the writings passed between Mrs. Jones and himself, already been employed, on a secular day or days, to represent her professionally in and about the subject-matters involved in Mrs. Stewart’s suit against her for partition of property, and the incidental receivership, if Mrs. Jones found that she needed the services of a lawyer. An implied contract employing him was already made, and nothing was left undone to perfect the contract, since Mrs. Jones had concluded the contract, at least to the extent of engaging Bowers’ services for a conference and advice by the concluding terms of her second letter. Bower’s telegram in reply to Mrs. Jones’ first letter precluded him from accepting employment from Mrs. Stewart in or about the subject-matter of the partition receivership suit, and he was under duty, after receiving Mrs. Jones’ second letter, to confer with and advise her in respect to said subject-matter upon her arrival at Gulfport, and before the Sunday morning upon which they casually met as before stated.

It seems quite clear that the letter of Mrs. Jones to Mr. Bowers and Mr. Bowers’ telegram acknowledging receipt of the letter and agreeing to accept employment from Mrs. Jones, was a complete contract of retainer, and the fact that Mr. Bowers and his client went into conference on the Lord’s Day in no way vitiated the retainer. This sort of contract is not unusual. A lawyer is retained, and not infrequently he does not and is not expected to do anything. Lawyers are retained, and the contract is complete, when the lawyer may not represent the other side should there be another side.

A recent decision of this court recognizes this sort of a contract, and the facts of that case are similar to the facts of the instant case. In that case and in this case the ^unday law was invoked by the defendant. In that case, as in this case, the contract of retainer was completed on a secular day, and it was held that although some of the work done by the attorney was performed on Sunday, this did not invalidate that part of the contract of retainer.

It is a well-known fact that some of the corporations retain an attorney merely to prevent him from representing the other side, and he is not to do anything for the corporation retaining him.

Reversed and remanded.