Opinion
31620.
DECIDED JUNE 27, 1947. REHEARING DENIED JULY 11, 1947.
Complaint; from Gordon Superior Court — Judge Brooke. April 4, 1947.
Harbin M. King, for plaintiff in error.
John D. Edge, J. A. Gregory, and James Maddox, contra.
1. The motion to dismiss the bill of exceptions is without merit.
2. The plaintiffs failed to prove their case as laid and the court erred in directing a verdict in their favor against the defendant, and in overruling the motion for new trial.
DECIDED JUNE 27, 1947. REHEARING DENIED JULY 11, 1947.
John D. Edge and J. A. Gregory, formerly a partnership, practicing law under the name and style of Edge Gregory, and James Maddox, brought an action against J. D. Dorsey in two counts. Count 1 of the petition alleged: that on or about March 22, 1945, the plaintiffs and the defendant entered into an agreement under which the plaintiffs were to represent the defendant and handle his claim against Echota Cotton Mills Inc. for damages for breach of contract, and the defendant agreed to pay the plaintiffs fifty percent of the amount which the defendant might recover in the suit against Echota Cotton Mills Inc.; that on March 26, 1945, the plaintiffs filed suit, in accordance with the agreement, in the Superior Court of Gordon County against Echota Cotton Mills Inc., returnable to the May term, 1945, claiming $3057.60; that the plaintiffs were ready and willing to prosecute said suit to a conclusion, but the defendant refused and failed to do so, and by the defendant's refusal and failure so to prosecute said suit he has breached the terms of the agreement with the plaintiffs; and that the defendant's breach of the agreement has damaged the plaintiffs in the sum of $1528.80. Count 2 alleged: that on or about March 22, 1945, the plaintiffs and the defendant entered into an agreement of employment under which the defendant employed the plaintiffs as attorneys at law for the defendant to prosecute a certain claim of the defendant for damages against Echota Cotton Mills Inc. for breach of contract; that in pursuance of the said employment the plaintiffs filed suit on the claim March 26, 1945, returnable to the May term, 1945, of the Superior Court of Gordon County, in which suit $3057.60 was claimed as damages; that the defendant has refused and failed to prosecute said suit to a conclusion; that the plaintiffs' services in said employment and said suit, in quantum meruit, were reasonably worth the sum of $1528.80, for which the plaintiffs sued.
No demurrers were filed, and the defendant answered denying all the material allegations of both counts. At the conclusion of the evidence for both sides, counsel for the plaintiffs made the following motion for a directed verdict: "Your Honor, please, we ask for a directed verdict. I believe it is on the second count in the petition, for one-third of $3057.60. We are accepting Mr. Dorsey's statement as to the contract, and it wasn't afterwards changed to one-half. We say there is nothing to go to the jury here. He admits the contract to that extent, admits every representation which was made to us which is set up in the petition. He admits that he of his own volition stayed away from court and refused to come to court, and there is no excuse for his not being here, and we are entitled to our fees under the contract that was entered into — no question for the jury to pass on." Thereupon the court directed the jury to return a verdict for the plaintiffs in the amount of one-third of $3057.60, which the jury did. The defendant filed his motion for a new trial on the general grounds and four special grounds as follows: "Because upon the trial of said case . . the court erred in directing a verdict in favor of the plaintiffs and against the defendant . . for the reason that the evidence introduced on the trial was in conflict and raised issues of fact which could only be determined by the jury trying the case. 2. Because . . upon the trial of the case, the plaintiffs attempted to show on cross-examination of defendant that the original case against Echota Cotton Mills Incorporated was meritorious solely on the testimony of said defendant, the original plaintiff, for the reason that said testimony was merely opinion testimony, no facts being stated whatsoever upon which he based said testimony. 3. Because . . plaintiffs attempted to show that their services were worth a stated sum, to wit, $1528.80, then subsequently agreed to reduce their fee to one-third of the amount sued for in the original case against Echota Cotton Mills Incorporated, to wit, $1019.20, whereupon the trial judge directed a verdict for such sum, and in so doing the trial judge committed error in directing said verdict since, had the matter been submitted to the jury, they would not have been constrained to accept this opinion as absolutely correct, but might [have] found that the services in question were of a different value, had the plaintiffs been entitled to recover in said case. 4. Because . . at the conclusion of the defendant's testimony . . plaintiffs' attorney asked the court to direct a verdict for plaintiffs on the second count of the petition. Said second count of petition being on quantum meruit (reasonable value for services rendered) recovery against defendant, movant herein; the question of reasonable value for services rendered being solely a question for the jury to determine." The court overruled the motion for a new trial, and the defendant excepted. On appeal to this court the defendant in error made the following motion to dismiss the bill of exceptions: "1. That there is no proper brief of evidence as contemplated by the rules of this court, but that the same contains long objections, questions, rulings of the court, and colloquies between counsel. 2. That the bill of exceptions was never tendered to the attorneys at law representing defendants before being certified by the court, and no waiver of this privilege was made in writing by said attorneys, as is required by the rules of procedure of this court and as set up in rule 7."
1. The defendant in error's motion to dismiss the bill of exceptions is without merit on both grounds:
(a) While the brief of evidence contained some surplusage, including questions and answers and several colloquies of counsel, there was no such flagrant disregard of the statute as to require a dismissal of the bill of exceptions. Cotton v. Cotton, 136 Ga. 138 ( 70 S.E. 1015).
(b) Part 7 of the Rules of Practice and Procedure for Appeal or Review (Ga. L. 1946, p. 726) states: "That there be adopted, prescribed, and enacted, to become a part of Chapter 6 of the Code of 1933 the following: `In cases where the defendant in error named in a bill of exceptions is represented by an attorney at law or appears in propria persona, the judge, before certifying the bill of exceptions, shall require reasonable notice to such attorney or such party and afford him an opportunity to be heard on the question of whether or not the bill of exceptions as tendered is correct and complete. If an attorney of record for a defendant in error, or such party, in writing waives this privilege or in writing approves the bill of exceptions as correct and complete as to the averments of fact therein this requirement shall be deemed waived. Such waiver shall be attached to the bill of exceptions as an exhibit thereto.'" However, the last sentence of Part 12 (Code, § 6-909; Ga. L. 1946, p. 726) states: "The action or non-action of the trial judge as to requiring notice under this section and Part 7 of this report, which is to be added to the Code as a new section, shall not be reviewable." While we think that it would have been conducive of less confusion had this sentence been actually integrated as a part of Part 7, it is clearly apparent from the terms of the two sections that the trial judge's failure to give the notice required in Part 7 is not a subject for review by this court.
2. We need not concern ourselves here with count 2 of the petition, as it appears; indeed, counsel for the plaintiffs so state in their brief, that this count of the petition was specifically abandoned. Although counsel for the plaintiffs requested a directed verdict in these words: "Your Honor, please, we ask for a directed verdict. I believe it is on the second count in the petition," which count was based on a quantum meruit, the entire request, which appears in the statement of facts preceding this opinion, clearly shows that count 1, which was based on the breach of contract, was intended.
The plaintiffs alleged in count 1 that they had entered into an oral contract with the defendant, under the terms of which they, as attorneys at law, were to prosecute a certain action for the defendant against Echota Cotton Mills Incorporated for breach of contract, for which service they were to receive fifty percent of the amount which the defendant might recover in that suit; and that the defendant had breached this contract of employment. On the trial, the defendant admitted entering into an agreement with the plaintiffs, but insisted that, instead of fifty percent he had agreed that the plaintiffs should have only one-third of the amount which he might recover against Echota Cotton Mills. Counsel for the plaintiffs thereafter agreed that the defendant was correct in this regard, and that the plaintiffs were to receive only one-third. The evidence further revealed that the plaintiffs instituted suit against Echota Cotton Mills Incorporated, on March 26, 1945, in the Superior Court of Gordon County, and the defendant admitted that, with knowledge of the time when the case was to be tried, he of his own volition failed and refused to appear on the day the case was set for trial. As the plaintiffs testified, the case was dismissed for lack of prosecution, since they could not proceed to trial in the defendant's absence as he was his main witness. The defendant's action in refusing to appear at the trial amounted to a virtual dismissal of the attorneys. A client may discharge his attorney for any reason, however arbitrary, dismiss the suit, or settle the case to his own satisfaction, and his action in doing so is not a breach of the contract of employment but the exercise of his right. White v. Aiken, 197 Ga. 29 ( 28 S.E.2d 263); Marquam v. Vachon, 7 Fed. (2d) 607; McPhail v. Spore, 62 Colo. 307 ( 162 P. 151), and cit. The client's action in dismissing a suit or settling his claim does not, however, defeat the attorney's claim to compensation for his services, or as was suggested in White v. Aiken, supra, where the fee is contingent, the attorney is not precluded from proceeding to judgment in a suit, over the client's objection, in order to establish the right of his client to recover in order that the attorney may recover his fee. Such action on the attorney's part, in the latter instance, is not, however, a recovery from the client for breach of contract, but is a recovery of reasonable fees in the nature of a quantum meruit, or an enforcement of his attorney's lien. The plaintiffs proceeded in this case on the theory of a breach of contract. While the defendant admitted entering into the agreement and admitted his refusal to appear in court on the day the case was called for trial, he does not admit anything which constitutes a breach of the contract, and the evidence can not, under any view, be held to support the allegation of the special contract of employment. The fee agreed upon was conditioned upon recovery against Echota Cotton Mills and collection or execution on the judgment, and until the happening of these contingencies the plaintiffs could not sue under the special contract. Byrd v. Clark, 170 Ga. 669 ( 153 S.E. 737). While it may be that there is sufficient evidence to support an action for damages incurred by the plaintiffs in connection with the bringing of the suit against Echota Cotton Mills; or sufficient evidence to support an action on a quantum meruit, the plaintiffs did not bring their action on either of these theories, under the facts of this case; nor, had they proceeded on the quantum meruit theory, could the court in this case have properly directed a verdict on that court. The question of reasonable value of services rendered is for the determination of the jury where there has been no admission or agreement by the opposite party that the amount sued for is reasonable. There was no evidence in the record that the defendant had received anything from Echota Cotton Mills by settling the claim.
The plaintiffs failed to prove their case as laid, and the court erred in directing a verdict in their favor and in overruling the motion for a new trial.
Judgment reversed. Parker, J., concurs. Sutton, C. J., concurs specially.
I concur in the judgment of reversal, but not in all that is said in the opinion with reference to the holding in White v. Aiken, 197 Ga. 29 (supra).