Jones v. Lewis , 11 Tex. 359 ( 1854 )

Lipscomb, J.

We shall omit noticing all the points presented by the assignment of errors, and confine our investigation to such as we believe to be the most important. From the second bill of exceptions, it appears that the Judge charged the jury, “ That if it appeared that plaintiff was the attorney “ of the estate of Kingston, deceased, generally, from the time “ of the appointment of the first administrator in 1845, up to “ the time he was discharged, as such attorney, in 1849, by “ Jones, who administered on the said estate for the third time, “ (a mistake, he is the fourth administrator,) the limitation “ did not begin to run as to any of his charges for attorney’s “ fees against said estate, until the time of his discharge as said “ attorney in 1849, and that the relation of client and attorney “ could continuously exist, between the plaintiff and said es- “ tate, from the time he was employed as such by the first ad- “ ministrator in 1845, until his discharge, in 1849, by the “ administrator.” The balance of the bill of exceptions is not material, and is therefore omitted; it charges, in subtsance what had already been charged, that the estate was liable to the attorney for all the services running through the three administrations.

We believe, that the proposition laid down by the Court below, that the statute of limitations did not begin to run against a claim, by an attorney, for his fees, until he was discharged, is not true. In the absence of any stipulation to the contrary, the rule is believed to be, that when the service is rendered or performed, the right to demand payment accrues, and the statute then commences to run. This rule applies to every kind of service; and we can perceive no reason founded 'in law or sound reason or policy, for claiming an exception in favor of services performed by an attorney, at the instance and request of an administrator; and it may well be doubted, if an administrator, in his representative capacity, would be permitted to make an engagement for services necessary to the interest of his trust, and postpone the payment to a period of time, that would present an obstacle to the final settlement and close of his administration. If the interest of the estate required the service of an attorney, he would be permitted to contract for such service; and the attorney performing the service, would be entitled to his pay, when the service was performed ; and, if not paid, he could, on refusal of the administrator to allow his claim, bring suit in the District Court, where his claim, if reasonable, would be adjudicated in his favor, and certified to the Probate Court for payment in the due course of the administration. If allowed by the administrator, it would be the duty of the Probate Judge, unless he thought it unreasonable, to approve the claim, and order it to be paid. (See Portis v. Cole and another, adm’r, Ante, 157.) In the case cited, we departed from the rule of the '.Common Law, for reasons then given, so far as to sustain the right of an administrator, to bind the estate of his intestate, on a contract to pay a reasonable price for necessary professional services; but policy requires that they should not be allowed to embarrass the settlement of an estate, by such contracts. We believe, if it were admitted that a contract with an attorney, for services, by an administrator, would, per se, be continuous and extend beyond the term of his administration, (which, however, is not admitted,) and run through any and all subsequent administrations on the same estate, yet it would not necessarily follow, that payment for services rendered under contracts with previous administrators, should be suspended, and they never presented for settlement with the Probate Court. The services, rendered to each administrator, should be held as a distinct claim, and settled within the time prescribed, by law, as a limitation to a right to recover on a contract for the payment of money, not in writing. Every action brought for services rendered to the estate, should be prosecuted within the time prescribed, after the services rendered, or should be held as barred by the statute of limitations.

There is no distinction,¿in principle, between this case and one where the client had contracted with his lawyer, to attend to all of his litigation, without stipulating as to the time and mode of payment for services; and it is clear, that in the last, the attorney would have a right of action for services, as soon as he had rendered the service, and from that time the statute would commence to run.

This point may be further illustrated, by a reference to a part of the record of this case. It appears that a suit had been commenced under the first or second administration that had been granted on this estate, for the partition of land, the undivided half of which was claimed to belong to the estate. This suit was not finally disposed of in the District Court, until some time in thirty-eight or nine; and it appears that the plaintiff below, was attorney for prosecuting the suit for a partition, and had brought the suit. Now, if he was the counsel for the estate, the statute did not begin to run against a claim for his services, until the suit was terminated, because not until then, had he a right to demand payment for his services, unless there had been a stipulation for payment in the progress of the suit; or if he had been discharged before the termination of the suit.

We do not say that there could be no contract between the attorney and the first administrator, that could, under any circumstances, be continuous. If the contract between the first administrator and the attorney, had been that so far as the professional services of the attorney should be required, the attorney should render such service, until the estate was ready for a final settlement, and that the attorney was then to receive a certain compensation, the contract would then have been entire, including compensation for the whole service; in such case, if the administrator died, resigned or was removed, and the new administrator continued the attorney in his service, the presumption would be, in the absence of proof to the contrary, that the first contract was continued and ratified ; but the law would raise no such presumption of such contract with the first, in the absence of proof of it having been made; and the attorney would be entitled to demand compensation for Ms services, as those services were performed.

In this case, the account on which rested the attorney’s claim, as presented to, and rejected by, the administrator, was not for the aggregate of the value of his services for the estate, under a contract; but it was composed of different items of services rendered on different occasions. Row, for each of those services, he had a right, in the absence of a special stipulation to the contrary, as we have seen, to demand payment, as soon as the service was rendered ; and if he failed to do so, until barred by the statute of limitations, he was barred from a recovery. Some of the services, sued for, were certainly barred by the statute, before the commencement of this suit. (See Hart. Dig. Art. 2377.) The Court below, in the charge we have discussed, ruled out the bar as to the whole claim, and held it not to apply to any of them.

The other assignments will not receive particular notice, as it is believed the errors of the Court, on those points, arose from a mistaken opinion of the law on the question discussed. The judgment is reversed and the cause remanded.

Reversed and remanded.