Nunn v. Veale

Appellee filed this suit in the county court of Potter county to recover of appellant $529.50 alleged to be due him as attorney's fees for certain services and incidental expenses rendered by appellee.

The court peremptorily instructed the jury to return a verdict in appellee's favor for the full amount claimed under the contract, together with $29.50, incidental expenses, incurred by appellee in his capacity as attorney for appellant. The issues raised by the pleading are briefly: (1) That appellee neglected the matter in which he was employed; (2) that appellee abandoned the services of defendant without just cause; (3) that he rendered no services of any value; and (4) that the contract of employment was set aside by mutual agreement.

It is not proper for us to discuss in detail the evidence, but, in view of another trial, it is our duty to state that the court did not err in refusing to submit to the jury for their consideration the first three issues mentioned above. There is no testimony whatever showing that appellee neglected the business of appellant or that he abandoned the service, or that his services were of no value. Upon the last issue the record discloses, amongst other facts, this testimony: On February 2, 1911, appellee wrote appellant a letter, wherein he made the following statements: "Now Dr., there is just simply this about it: Unless you are willing to be governed by my judgment and to respond to calls made on you for information and conference, I see no use in continuing the relation. * * * Now, it may be possible, Dr., if not altogether probable, that you can find somebody to take charge of this matter with whom you can deal more satisfactorily than myself, * * * and I am perfectly willing that you should do so. In fact, if it is necessary to have to beg you to come in response to the calls I have been earnestly making, the relationship will be unsatisfactory to both you and myself." The record further discloses that on February 4th appellant replied to this letter, quoting the above statements, and added: "As stated above, I greatly regret the existing state of the case but I am persuaded that on account of your continued absence and the likelihood of further complication, it is better that a change be made. Therefore I accept your proposition and release you from your contract to represent me in this case," etc. In our opinion this testimony was sufficient to require the submission of the issue of mutual rescission of the contract of employment to the jury.

The remaining assignments of error complain of the action of the court in refusing special charges upon the questions of abandonment, neglect, and value of services, and, since the evidence was not sufficient to warrant the submission of those issues to the jury, as hereinbefore stated, the remaining assignments are overruled.

For the error in peremptorily instructing the jury and refusing to submit the issue of mutual rescission, the judgment is reversed and the cause remanded.

GRAHAM, C.J., not sitting.