Smith v. Lipscomb , 13 Tex. 532 ( 1855 )

Hughes, S. J.

The action in the Court below was commenced upon an agreement in writing between the appellant Smith, and the appellee Lipscomb, of the date of the 16th day of April, 1840, by which, in consideration of the matters therein mentioned, Lipscomb agreed to render his professional services as attorney at law, &c., in the land business of Smith, and for those persons for whom he was agent; in consideration whereof said Smith promised to pay said Lipscomb the sum of five thousand dollars, in three equal instalments, one-third at the end of one year, one-tliird in eighteen months, and the remainder in twenty-four months from date. By the agreement referred to the covenants on the part of Lipscomb were not to be performed within any limited period.

On this agreement action was commenced by Libscomb, for the use of Lipscomb and Gillespie, in the District Court of Victoria county, on the 20th day of April, 1849, to recover the five thousand dollars. By the petition the agreement is sued on by proper averments, connected with an allegation, that, on the 22d day of June, 1845, by indorsement upon the agreement, the said Smith confirmed the same, and waived the law of prescription. The petition then avers that he, Lipscomb, had done and caused to be done, all and every thing on his part to be done and performed, to entitle him to the sum demanded, and then concludes with a breach, and the necessary prayer for relief.

The defendant, after service of process, entered his appearpearance by filing his answer, in which is a demurrer, and this assigned for cause: that said plaintiff cannot recover money of the said defendant for services performed as an attorney, or legal advice given to said defendant by another person, as claimed in said petition.

This demurrer was submitted to the Court by order preceding the order setting out the trial, &c,, and was overruled. And the first question is, did the Court err in making this ruling ? This is the main question, and as such will now be considered and disposed of.

The averment of the petition is, that Lipscomb had done and performed, and caused to be done and performed, all on his part to be done and performed. But this is said not to be sufficient, for the reason, that when Lipscomb was employed, he had no right to employ another; and it being alleged by Lipscomb that he had caused to be done, what was necessary to be performed ; this is tantamount to the allegation that it was done by another, and consequently he did not perform and was not entitled to recover.

This we believe not to be the correct rule. We are satisfied that the correct rule is, that, in the case supposed, the case of an attorney, it is competent for him to substitute another in his room and stead, and if the client knew of the substitution, and either accepts the services of the substitute, or does not object, he is bound by the substitution. To this effect the law is laid down by the Supeme Court of the State. (Butler v. Allcorn, 8 Tex. R. 56.) The demurrer was, therefore, properly overruled by the Court below.

The trial was thereupon had ; during the progress of which various objections and exceptions were taken and questions reasoned, and a verdict and judgment was rendered in favor of Lipscomb. A new trial was asked for, overruled and appeal to this Court.

But a portion of the questions made in the Court below or in this Court, are thought to be entitled to notice.

It is contended, as it had been in the Court below, that the agreement sued on was with Lipscomb, who in consideration of the promise by Smith, agreed to perform certain professional services; and if true that Gillespie was substituted with the consent of Smith, express or implied, yet this was not properly given in evidence on the trial in the Court below, because there was no allegation to that effect in the petition.

Were it true that, to entitle Lipscomb to recover the five thousand dollars on the agreement, it was necessary for him to allege performance on Ms part, we would say that the allegation is sufficient. The performance, as we have seen by a substitute, is sufficient, when done with the consent of the party to be charged ; and this must go upon the ground that the performance by the substitute is the performance of the principal; and consequently an averment of performance, without allusion to a substitute, is good, and under it evidence might be given of such substitute, and performance by him. But this question does not properly arise.

It is true that Lipscomb avers performance, but this was unnecessary. An action might have been sustained to recover the five thousand dollars, without any such averment. The rule applicable here as to covenants is, that where a day is appointed for the payment of a sum of money which is or may arrive before the time appointed for, or the performance of the act to be done in consideration of the money to be paid; then the covenants are mutual and independent, and the payee may maintain an action for the recovery of the sum promised to be paid, without averring performance on his side. (Leftwich v. Coleman, 3 How. Miss. 167; Rector v. Price, Id. 321.)

Three determinate periods were fixed for the payment of the five thousand dollars in instalments, and from the nature of the acts to be performed by Lipscomb, it is either certain that the times fixed for payment would, or that they might arrive before the performance on the part of Lipscomb; for Lipscomb was to act as the counsel and attorney of Smith, in an extensive land litigation, which this record shows is not yet ended. The covenants are therefore independent of each other, and Lipscomb had a right to maintain his action, without averment of performance on his part. It is true, however, that Lipscomb having sued, after the relation of attorney and client had ceased, it was competent for Smith to show a failure of consideration, and then in answer to the case attempted to be made by the defendant, it was competent for the plaintiff to show that Gillespie was substituted to Lipscomb with Smith’s consent; and that Gillespie performed the covenants faithfully, until dismissed by Smith. This, however, would not be shown for the purpose of proving a cause of action, but in answer to the proof as to failure of consideration by showing that Lipscomb had not done what he had agreed to do; that whatever was done, was done and performed by Gillespie. The covenants being mutual and independant, showing the promise, the arrival of the time fixed for payment, and a failure to pay was all that was necessary to make out a cause of action by the plaintiff, and the proof as to performonee was a mere negation of the plaintiff’s case. It was the dismission or discharge of Gillespie as attorney, which relieved Lipscomb from further performance by himself or any one else, and perfected his right to the five thousand dollars promised to be paid; the rule being well established, that where a party in whose favor something is to be done, in consideration of his promise to pay a certain sum of money to another, prevents that performance, and the other is not in default, the money may be recovered as if the act had been peformed. (Kennedy v. Kennedy, 2 Bibb. 454; Marshall v. Craig, 1 Bibb, 389-390.)

The plaintiff'below, Lipscomb, then, was entitled to recover, though everything was not in fact done by him which was required by the agreement, because the act of Smith by preventing, excused the non-performance, and it was as if there had been a perfect performance by Lipscomb, and the new trial was properly overruled.

We think there was no error in the judgment of the Court, and that the same ought to be and accordingly is affirmed.

Judgment affirmed.