Brightly v. McAleer

Opinion by

Rice, P. J.,

The cause of action set forth in the plaintiff’s statement arose out of a special contract of the defendant to pay him $250 in full for and in consideration of his services as an attorney'at law rendered to the defendant prior to the date of the contract in the matter of the defendant’s application for a retail liquor license and in the matter of the defendant’s remonstrance against another application. The defendant, instead qf denying in general terms the existence of such a contract, stated the facts and left the court to judge of their legal effect. In so doing.he avoided the fault, which has been so frequently-condemned, of merely swearing to his conclusions of law. Nor did he commit the other error of loading down his affidavit with mere recitals of evidence, instead of stating the facts. He alleges that he engaged the plaintiff and' another member of the bar to apply for a retail liquor license, and agreed to pay them a fee of $1,000 contingent upon success; that afterwards, at their solicitation, he paid them $100 on account; that still later they demanded of him additional money; whereupon he expressed dissatisfaction with their conduct, and notified them that he would engage other counsel, which he afterwards did. We make no comment on the character of the contract. For present purposes it is assumed that it was valid; but there was nothing in its terms which interfered with the defendant’s control of the proceeding, or with his right to discharge his attorneys and to employ another. And if their right to recover were to be determined by the result, they would be entitled to recover nothing, because the license was refused. They certainly would not have been entitled to recover the whol.e fee, without showing that if they had been retained they would have succeeded in obtaining the license; and, as from the very nature of the case it would have been impossible for them to show that, the most that they could have recovered was reasonable compensation for services rendered prior to the time when they were discharged.

A similar question was very fully and ably discussed in the case cited by appellant’s counsel (Western Union Tel. Co. v. Seemes, 73 Md. 9), and the distinction was clearly pointed out between such a contract and a contract to build a house or to do other work which the plaintiff is prevented by the defendant from completing. This then was the condition of affairs at the time the contract alleged in the statement was entered into. The plaintiff had a claim for reasonable compensation for services theretofore rendered for the defendant at the latter’s request. It is argued that a past consideration is, in effect, no consideration at all; that is to say, it confers no benefit on the promisor, and involves no detriment to the promisee in respect of his promise; therefore, as it appears from the plaintiff’s statement that the consideration upon which the alleged promise to pay |250 was based, was past and executed, the plaintiff has failed to set up a good cause of action. In Cunningham v. Garvin, 10 Pa. 366 it was said: “Now though anciently this (‘a past consideration flowing from a benefit conferred ’) was thought inadequate to support a promise to pay, it has long been settled that a benefit derived from the unsolicited services of another, creates a moral obligation of sufficient potency to sustain an express promise.” In support of this proposition the court cited Greeves v. McAllister, 2 Bin. 591; Clark v. Herring, 5 Bin. 33; Nesmith v. Drum, 8 W. & S. 9. So in Albany City Ins. Co. v. Whitney, 70 Pa. 248, Mr. Justice Shabswood said: “ But a benefit conferred or services rendered, though purely voluntary, is sufficient consideration to support an express promise.” In Paul v. Stackhouse, 38 Pa. 302, Mr. Justice Woodwabd said: “It is true as a general rule, that the consideration which binds a surety must be executory; but where the thing was done at the instance or request of the surety a past consideration binds him.” He also quotes with approval the rule as stated in Pitman on Principal and Surety, that where the act was done at the request of the party promising, the promise is not a naked one, but couples itself with the precedent request, and is, therefore, founded on a good consideration. It would seem, without further citation of authorities, that the doctrine as to past consideration, as broadly asserted by the defendant’s counsel, has not been adopted unqualifiedly in this commonwealth. But be that as it may, according to the defendant’s own showing the principle contended for-by him is not applicable to the contract in suit, if one was made.

While in general it is true that a mere agreement to accept a smaller sum in discharge of a larger, is not binding for want of consideration, yet a contract made in compromise and settlement of a disputed and doubtful claim is binding. It relies for its support not on a past consideration alone, but on a present benefit. The plaintiff, being asked what he would take in settlement of his claim for past services, demanded $50Q. The defendant was unwilling to admit that he was entitled to so much. Here was a dispute, not as to the defendant’s liability, but as to the amount. It could only be settled by agreement or by litigation, and certainly there is no hard and fast rule of law which drove them to the latter method. If, in settlement and compromise of this disputed and unliquidated claim, the defendant offered to pay $250, and the plaintiff accepted the offer, the contract was binding on both parties. But was there such a contract ? This question is to be decided on the averments of fact contained in the affidavit of defense, which, for present purposes, we must assume contain the whole truth regarding the negotiations. The plaintiff having stated that he would take $500 in settlement, the defendant asked, “ wouldn’t half that sum be sufficient ? ” This was not an offer to pay $250, and if the plaintiff had given an affirmative answer the defendant would still have been at liberty to accept or decline the new proposition; for that, in reality, was what it would have been. But the plaintiff did not see fit to offer to take $250, but replied, “ well anything at all you like.” Inasmuch as the defendant had not expressed a willingness to pay any definite sum, much less $250, this reply cannot be construed as an acceptance of a proposition to pay that sum. The plaintiff’s next question, “ License or no license ? ” indicated that he did not propose to leave the terms of the settlement wholly to the discretion of the defendant, and when the latter replied “ all right ” the plaintiff made no reply. As we construe this loose and disjointed conversation, which the defendant alleges was all that was had, it shows negotiations for a settlement and compromise of the plaintiff’s claim for the past services, but not an offer accepted, binding both parties — the defendant to pay $250, and the plaintiff to relinquish any claim for a greater sum. If both were not bound, neither was. We are of opinion that upon the facts averred in the affidavit of defense the defendant was entitled to have the case submitted to a jury.

Judgment is reversed and a procedendo awarded-