White v. Burch , 33 S.W.2d 512 ( 1930 )

The majority, BUCK, A. J., dissenting, not feeling entirely satisfied, on a former day set aside our former order overruling appellant's original motion for rehearing and granted her application to file a second motion. The second motion was filed on October 25, 1930, since which time we have examined the plaintiff's petition, the defendant's answer, the charge of the court, the verdict of the jury, and the judgment in the former suit between these same parties, to wit, in cause No. 12157, White v. Burch, reported in 19 S.W.2d 404. In that case it was decided that appellee Burch was wrongfully discharged as appellant's attorney, and that Burch was hence entitled to the full fee contracted for; Texas authorities being cited as sustaining this proposition. Writ of error in that case was refused by the Supreme Court; thus, apparently at least, approving the holding. Such, too, seems to have been the construction given the contract of employment by the parties thereto as evidenced by the subsequent agreement relating to the collection of insurance policies entered into pending the appeal in cause No. 12157.

It is true the decisions on the subject are not in harmony. Appellant cites the case of Shirk v. Neible, 156 Ind. 66, 59 N.E. 281, 83 Am. St. Rep. 150, as most nearly in point. That case is distinguishable, among other particulars, in that, when first approached by a father and two sons charged with murder, the attorneys declined to fix the amount of their fee, stating "that it was impossible to determine at that time what services they would be called upon to render, but that their charges would be reasonable." Later, after the attorneys had diligently prosecuted an investigation by communicating with the witnesses, family, and attending an examining trial, the father again approached the attorneys, and again requested the attorneys to state what their fee would be. Upon the father's insistence, they replied that "they would, if required to fix their fee at that time, consider all the work that might have to be done in the case, and would fix it at $3,000," which the father then agreed to pay. Yet later, when the father was sued on the fee contract, it was made to appear that the father and his two sons had not been indicted but had been discharged. In disposing of the case, the court said:

"The services of said attorneys in and about the defense of the Neibles were worth $500, and no more. If all of the Neibles had been indicted for murder, and tried separately therefor, the services of their attorneys would have been worth $3,000. * * *

"At the first meeting, and before the employment, and while the parties stood at arm's length and upon an equal footing, Neible was capacitated to make a contract with respect to fees that the law would require him to keep. Then there was no special confidence between them — no vis major — to give one advantage over the other in making a bargain. At that time, if an agreement could not have been made to his liking, Neible could have turned to other lawyers without injury or impairment of his defense. But at this first meeting, and before their employment, Neible requested said attorneys to state the total amount of their fee for the defense, which they refused to do, assigning for the refusal the same reasons that subsequently yielded to their effort to do so. The employment made was a general employment, under which the attorneys were entitled to a reasonable compensation for the services rendered, and, having accepted such employment and established a relation of confidence that gave them vantage ground, the law thereby stripped them of all power during the continuance of the relation to contract with their client for a fee in excess of fair compensation."

By reference to the original opinion in this case, reported in19 S.W.2d 404, 405, it may be seen that appellee Burch "filed an answer, in which he denied generally the allegations of fraud and pleaded and showed by evidence that the contract had been made with the utmost good faith on his part; that, when Mrs. White and Mr. Wallis and the daughter and son of Mrs. White came to see him late in the afternoon, he talked with her and told her what he would charge her for representing her and her son, but further suggested that she return home and talk with her family and her friends and come back the next day; that she did return the next day and expressed a desire to employ him as her attorney, but stated that she would like to talk to two men before signing the contract; that the two men were M. L. Wallis, heretofore mentioned, and Carl Christian, the latter a merchant at Decatur with whom Mrs. White and her family had traded; that he telephoned and finally went down to the store of Mr. Christian and found that he was in Dallas and would not be back until the next day; that he offered to have his wife go out in the country some seven miles and get Mr. Wallis, but that young White volunteered to go and did get him and returned with him to Burch's office."

That state of the negotiations was established by the verdict and judgment of the trial court, approved on appeal to this court, and left undisturbed by our Supreme Court.

The contract in this case, therefore, must be held to have been made after due deliberation between parties dealing at arm's length and capable of making any lawful agreement that they saw proper to make.

In Ruling Case Law, vol. 2, p. 1036, § 120, it is said:

"Before an attorney undertakes the business of a client he may contract with reference to compensation for his services, as no confidential relation then exists and the parties deal with each other at arm's length. A contract made under such circumstances is as valid and unobjectionable as if made between other persons not occupying fiduciary relations, and who are, in all respects, competent to contract with each other, and will be enforced unless champertous, or in contravention of public policy, or unless it appears that it was induced by fraud or misrepresentation, or that, in view of the nature of the claim, the compensation is so excessive as to evince a purpose on the part of the attorney to obtain an improper or undue advantage over the client; and the attorney, as a condition of enforcing it, is not bound to show that it was just, fair, and reasonable as is often held to be his duty in case of contracts made after the inception of the relation of attorney and client."

In section 129 it is further said:

"Where the employment of an attorney is under an express valid contract stipulating for the compensation which the attorney is to receive for his services, such contract is, generally speaking, conclusive as to the amount of such compensation. It is always within the power of the party to make a special contract for the compensation of his attorney, and no usage can have any effect upon his rights when he has made one, whether the contract specifies a definite amount, or provides that the attorney shall receive a certain proportion of the amount recovered in the suit for which he is employed. Such contract is binding on the attorney though the amount stipulated be inadequate, nor can a client avoid a contract with his attorney for fees for the reason simply that in the end it did not bring to him the results which he had anticipated thereunder."

In Corpus Juris, vol. 6, p. 724, § 293, it is said:

"Where an attorney has been discharged by his client without cause, the attorney may rescind the contract of employment and may recover on a quantum meruit for services rendered up to the date of his discharge; or he may treat the contract as continuing, although broken by the client, and may recover damages for the breach.

"According to the weight of authority, the measure of damages for such breach of contract is the full contract price. * * *"

In Cyclopedia of Law Procedure, vol. 4, p. 984, it is said:

"When an attorney makes a contract to perform certain services for an agreed sum and the client, without any valid excuse or reason, discharges him or prevents the fulfillment of the contract, the attorney is entitled to recover the full contract price."

The authors of the foregoing quotations cite cases in support of the text in notes.

It should be noted that this case is also distinguishable from cases holding that reasonable compensation for services, if any, already performed is the measure of damage where performance is impossible, in that at the time the contract was entered into performance by appellee Burch was not impossible, not even yet impossible, as all parties are living, and there exists no law of limitation for indictment and prosecution for murder. The contract took effect immediately on its execution, and operated by its terms as at once vesting in Burch one-half of amounts justly due on the insurance policies named, less the specified sums. Burch promptly entered upon performance and actually performed the same, as there was evidence to show, up to the time appellant repudiated the contract, and all factors of contingency or of impossibility were equally known and must be held to have been within the contemplation of both parties to the contract. By the execution of the contract and part performance, Burch not only assumed important responsibilities, but also barred himself from employment by any person, if any, desiring to do so, who might wish to prosecute the charges for murder against appellant and her sons, or desiring to resist payment of the insurance policies.

The majority finally conclude that this case was correctly disposed of in the original opinion, written by Justice BUCK, filed on July 5, 1930. Hence, upon the authorities cited in that opinion and herein, appellant's original and second motions must be overruled, and it is so ordered.