Opinion
(Filed 13 October, 1937.)
Attorney and Client § 9 — Evidence held insufficient to hold wife liable for attorney fees in action against husband in which she was not a party.
In this action by attorneys against husband and wife to recover fees for professional services, the evidence favorable to plaintiffs tended to show that the husband had deeded land to the wife subject to a mortgage, that plaintiffs' services were rendered in an action against the husband alone to foreclose the mortgage, and that the wife knew of the action and that it had been advantageously settled by compromise, and that there was no contract made directly between the wife and plaintiffs. Held: The evidence is insufficient to be submitted to the jury on the question of the wife's authorization of the employment of plaintiffs for her or on an implied contract by her to pay plaintiffs, and the wife's motion to nonsuit should have been allowed.
CIVIL ACTION for professional services rendered before Harris, J., at June Term, 1937, of HARNETT. Reversed.
Godwin Guy for plaintiffs, appellees.
J. R. Hood for feme defendant, appellant.
CONNOR, J., concurring.
BARNHILL, J., dissenting.
CLARKSON and DEVIN, JJ., concur in dissenting opinion.
This action was instituted in recorder's court of Dunn to recover attorneys' fee for professional services alleged to have been rendered in action in the Federal Court by the Virginia Trust Company against H. W. Lucas. The plaintiffs obtained judgment and the defendants appealed to the Superior Court, where plaintiffs again obtained judgment and the feme defendant, Callie Lucas, appealed to the Supreme Court, assigning as error the court's refusal to allow her motion for judgment as in case of nonsuit made when the plaintiffs had introduce their evidence and rested their case and renewed after all the evidence was in. C. S., 567.
We are of the opinion, and so hold, that the trial judge erred in refusing to allow the appellant's motion. The evidence was to the effect that the action in the Federal Court, wherein the alleged services were rendered, was against the male defendant; that the feme defendant, the appellant, was not a party thereto. The plaintiff E. F. Young testified: "I do not recall that his wife (the appellant) ever went to my office prior to the settlement (of the case in the Federal Court). I never has any conversation or contract with her about it." All that the evidence, taken in the light most favorable to the plaintiffs, tends to prove is that the appellant was the wife of her codefendant, that the land, the foreclosure of a deed of trust on which was the subject of the action in the Federal Court, had, prior to the action of foreclosure, been deeded by her codefendant to her, and that she knew of the action in the Federal Court, and that said action had been advantageously settled by compromise. This was not sufficient to carry the case to the jury upon the theory that the feme defendant, appellant, authorized the employment for her of the plaintiffs, or that there was an implied contract by her to pay the plaintiffs.
For the error assigned, the judgment against the appellant is
Reversed.