84 Ala. 502 | Ala. | 1887
The present suit was brought on a bond, or note under seal, of which the following is a copy:
“$500.00. One day after date I promise to pay to Walden & Son or bearer five hundred dollars, and to secure the same I hereby waive all exemption or relief laws under the statutes and constitution of Alabama — said sum being retainer to said Walden & Son as my attys, in case of State of Alabama against me, charged with homicide. Witness my hand and seal this Oct. 9th, 1884.
J. E. Dorsey (Seal).”
When this note or bond was given Dorsey was in jail under a charge of murder. Soon afterwards, and before any trial was had, Dorsey came to his death by violence at the hands of a mob. On November 24, 1884, letters of administration on Dorsey’s estate were granted by the proper court to Agnew, the appellant in the present case. This suit was commenced June 18, 1886, more than eighteen months after Agnew’s appointment.
One of the defenses relied on was non-claim — that the claim was neither presented to the administrator, nor filed
The second defense relied on was, that there was a failure of consideration; that the contract contemplated that Walden & Son should defend Dorsey on his trial for murder; that they had not done so, and that, without fault on Dorsey’s part, it was now rendered impossible that they could perform the services which were the inducement and consideration of the promise. This was pleaded and relied on in full defense of the action.
The note or bond on its face declares that said sum, five hundred dollars, was a retainer to said Walden & Son’ as Dorsey’s attorneys in case of the State against him, charged with homicide. Retainer is “the act of a client by which he engages an attorney or counsellor to manage a cause, either by prosecuting it where he is plaintiff, or defending it when he is defendant.” — Bouv. Law Die.; Worcester’s Die.; Webster’s Die. “The engagement of a counsel or solicitor to take or defend proceedings, or to advise or otherwise act for the client.” — Rapalje & Law. Law Die. “A preliminary fee given to a counsel to secure his services, or rather, as it has been said, to prevent the opposite side from engaging them.” Imp. Die., Eng.
We apprehend that neither of these definitions is technically and universally correct. Much must depend on usage and custom, as the same may prevail in the particular locality or jurisdiction in which the contract is made. That there are two classes of retainers, by which the services of attorneys, solicitors, or counsellors are secured, is believed to be common, if not universal. First, general retainers. These have for their object the securing, beforehand, of the services of a particular attorney or counsellor, for any emergency
A special retainer has reference to a particular case, or to a particular service. Such was the retainer in this case. It, however,, imposes obligations, pro lute vice, equally binding with those enjoined by a general retainer. It forbids the acceptance of adversary employment, or the performance of adversary services. It exacts undivided loyalty and allegiance to the client, equal to that demanded by the veriest despot that ever scourged a people. In that particular service his talents and skill are not his own; they are bought with a price. These he must bestow with all the zeal and earnestness of his nature, and in all the methods which truth and honesty can sanction. The obligation hath this extent; no greater.
Under our system, and the usages and customs which prevail with the profession, we feel safe in saying that in the absence of qualifying terms, a retainer, such as was given and accepted in this case, imposes on the attorney the following duties and obligations:
He must accept no retainer from the opposite side, must give counsel whenever needed or called for, must acquaint himself with the case and its wants, must render all needed professional aid in the preparation of the defense, and must give his earnest unflagging attention and services to the trial when it comes, unless the prosecution is cut short in some such way as is mentioned further on. And in these several duties he must not relax in zeal, until there is a judgment in the trial court, or other termination of the prosecution.
Taking upon one’s self so great duties, obligations and restraints as those enumerated above, surely presents some elements of consideration, which cut off the defense of total failure of consideration. — Maull v. Vaughn, 45 Ala. 134; Hixon v. Hetherington, 57 Ala. 165.
The present record presents something of an anomaly. The original complaint contained two counts, one special and one common. To this complaint the defendant filed four pleas on September 23, 1886. The fourth plea sets forth the facts recited above, as a failure of consideration, and as
It will thus be seen that there were two pleas, essentially and substantially alike, to one of which a demurrer was sustained, while issue was joined on the other. Now, if we regard plea number four of the first series as faulty, and, as a consequence, the demurrer to it as rightly sustained, the inevitable corrollary is that plea number five is equally bad, and tenders an immaterial issue. And issue having been taken on it, defendant should have been allowed to introduce testimony in support ot it. — Farrow v. Andrews, 69 Ala. 96; Mudge v. Treat, 57 Ala. 1. The Circuit Court erred in rejecting testimony in support of plea five of the second series.
Do the facts show there was a partial failure of consideration ?
We have summarized above the duties and services the plaintiffs undertook to perform for their client, when they accepted his retainer. The bond should be read as if it expressed these implications on its face. It is manifest that, without any fault on the part of the client, these services have been performed only in part, and that they never can be performed more fully. The agreed compensation was what each contracting party admitted and consented was the equivalent of all the services they would or could render in the defense they undertook to conduct, and we must suppose the general routine in such prosecutions was expected and had in contemplation. Executory contracts are entered upon with reference to the ordinary current of events. Abnormal results are neither anticipated nor provided against. Should they not, when they do occur, be considered in the interpretation ? A mechanic is employed to make repairs, and either
The case of Walker v. Clay, 21 Ala. 797, is not opposed to these views. In that case it was not shown that the services of the attorney could not be rendered at some future time, and would not be called for. Performance had not become impossible, as in this case. The real point was, whether by the terms of the contract the performance of the services had been made a condition precedent to the right to demand the fee. It was rightly ruled that it had not.
The testimony offered ought to have been received, as tending to prove partial failure of consideration.
Compensation in this case should not be scaled down to a mere equivalent for the actual services shown to have been rendered. The fact that the plaintiffs disabled themselves to accept a retainer on the opposite side is itself a consideration. The magnitude of the issue, and the responsibilities attendant upon such service, should be considered. And the consultation and counsel presumed to have been had and given at the time of the retainer, and possibly other things, must enter into the estimate.
We must not be misunderstood. The retainer contemplates only the services that may become necessary in the progress of the prosecution. Should there be a failure to find a true bill, a not. pros., or other termination, short of a' verdict in the cause, this, in the absence of stipulations, would furnish no ground of defense to the action for the
In the rulings on testimony, and in the charge given, the Circuit Court erred.
Reversed and remanded.