Cothran v. Brower , 75 Ga. 494 ( 1885 )

Hall, Justice.

Although this proceeding appears here in the name of the parties to the original suit, it is in fact a controversy between Wright, Meyerhardt & Wright, of the ono part and Daniel S. ■ Printup, of the other part, who are complainant’s counsel, respecting the right of the first parties to compensation for services rendered as counselors and attorneys at law, in bringing into court the fund out of which they insist they should be paid.

There is no question that the movants in this rule, Wright, Meyerhardt & Wright, rendered good and efficient-service in obtaining the verdict in the cause of Cothran vs. Brower, of which the fund now in the hands of the receiver was the result. There was a controversy between them and Printup, who was the leading counsel for Mrs. Cothran, the plaintiff in the suit, and who engaged their services for her, as to the portion of the recovery to which they were entitled as a fee. This was settled at ten per cent by an arrangement between the parties, and the settlement was reduced, to writing and signed by them' respectively, after the motion for a new trial had been finally-disposed of by a judgment of this court, rendered upon a bill of exceptions and writ of error sued out and prosecuted by Brown, the losing party in the case. Nothing preceding this agreement was considered or passed upon by the court on the trial of this rule. The defence set up> against the recovery of movants was that, after this agreement there were various motions, bills and other proceedings instituted, both in our court and in the courts of the United States, to arrest or set aside the verdict and decree rendered in the first case, and that in these subsequent proceedings the movants took no part, and utterly neglected and refused to render services, as by their contract and the law they should have done. To this it was replied! that movants was employed only for a particular purpose,, and to render a special service, viz., that the senior member of their firm, Judge A. R. Wright, should make the-concluding argument in the case before the jury,, which it is admitted he did, but as their fee was contingent upon the net final recovery, they were ready and willing to perform any services necessary to secure the fund, whenever they should be called upon by Mr. Printup for such services, and that they so informed him; that he never called! upon them for such services, but, on the contrary, conducted! himself in such manner as to repel all advances from them- and to render their association with him unpleasant. On these issues, thus sharply defined, the case was submitted', to a jury, who returned a verdict in favor of the movants,, and on this verdict the court entered a judgment directing: the receiver to pay and turn over to them the amount found to be due, out of the funds in his hands. The respondent made a motion for a new trial, which was refused^, and he excepted, and alleged therein various errors which are brought here for review, and which he now contends entitle him to have the judgment of the court below reversed.

1. The first assignment of error we shall notice is that made by the 3d and 9th grounds of the motion for a new trial. They each raise the same question in a different form. The judge’s note to the first of these grounds removes the foundation on which they rest. The respondent had offered an objection, which would have raised the question squarely, but after arguing it, and pending the deliberation of the court, and before any decision had been pronounced, he withdrew the objection, agreeing to go to the jury upon the contract between them and the issue which Printup made by his response to the rule ; and upon the issues between these parties the jury found their verdict. The evidence shows that fifty per cent of the fund in the receiver’s hands was liable to the payment of counsel fees, and that Printup was authorized by Mrs. Cothran to employ associate counsel, to be paid out of that portion of the recovery. The movants did not wish this amount to go into his hands before the settlement of their fees, as they were averse to being driven to a suit against him upon the contract, and by his agreement in open court, upon which the trial proceeded, the necessity for resorting to this course was obviated; and even if they did not have this right independently of such an agreement, which we are strongly inclined to think they had, the respondent is now estopped by his solemn admission in judicio from urging his objection. Besides, the 9th ground assigns no specific error to the final order, and without this we cannot consider it.

2. There is no error in the charge complained of in the 4th ground of the motion for a new trial. The movants had a right to stand on their contract as to the amount and character of the services they were thereby bound to render, unless it was shown that it was altered in this particular by a subsequent agreement, which it was contended was the case, and much evidence was introduced supporting and controverting this view. It was for the jury to find the truth of the matter, and this they have done, upon what seems to us sufficient testimony to sustain their verdict.

3. The charge excepted to in the 5th ground of the motion for a new trial submits the point as to whether Wright, Meyerhardt & Wright performed their duty after the execution of the contract between them and Printup, and if they did not, whether their failure to do so was owing to Printup’s conduct, which rendered their association with him unpleasant and difficult, and whether he ever called upon them for such services as they alleged he undertook to do. There is no error specified in this charge, which it seems to us was in every respect full and fair, and j ust such as should have been given.

4. The exception to the charge embodied in the 7th ground of the motion is groundless. The court did charge the principle which respondent’s counsel requested, as also the section of the Code which prevents attorneys from recovering upon contracts for services, when they have failed to render such' service. At the close of his charge, the judge says, in response to a request to charge this section of the Code, “ I think I have charged that it is the duty of a lawyer to follow up the case, whenever he can do so.”

5. The court gave in charge the principle contended for as correct in the 8th ground of the motion for a new trial. It was right to refuse to charge as requested in the language used by this court in the case of Moses vs Bagley & Sewell, 55 Ga., 283. There was a difference in the facts and circumstances of the two cases, and the charge given was more appropriate to the case undergoing investigation than that requested.

6. The remaining grounds of the motion amount to an allegation that the verdict was contrary to. law and evidence. We agree with the court below that such is not the case ; indeed, we think that it is in accordance with the law and the strong and decided weight of the evidence,

Judgment affirmed.