205 Ky. 188 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
Alleging that appellants, Bright Bros., a partnership, had employed him as lawyer to represent them in the collection and settlement of an indebtedness due the defendants from Ike Pearson of Cairo, 111., and had agreed to pay him a retainer fee of $500.00, and in ease he was successful in settling the accounts of Pearson on a basis of 25 per cent to hi-s creditors, an additional contingent fee of $500.00, appellee Turner instituted this action in the McCracken circuit court to recover $1,000.00 of appellants as attorney fee, and on trial was awarded a verdict and judgment for $500.00. Prom this judgment Bright Bros, appeal.
Appellants Bright Bros, now insist that the judgment should be reversed because there is a variance between the averments of the petition and the proof offered by Turner. We feel that the trial court would have sustained a motion of appellants, Bright Bros., to make the petition more specific, had such motion been made'; but we are further of the opinion that the averments of the petition, in the absence of such motion, were sufficient, after verdict and judgment, and that appellants waived their right to claim the averments of the petittion were too general and indefinite by failing to ask for a more definite averment. The proof did not exactly ac-
A member of the firm of Bright Bros, admits he entered into negotiations with Turner looking to such an arrangement, but he says it was not consummated nor to become binding or effective until approved by other members of the firm of Bright Bros. This, however, is denied by Turner. This question was submitted to a jury and the jury found, under proper instructions from the court, that appellee Turner had been retained by Bright Bros, to represent them in the matters stated in the petition, and had promised to pay him a fee of $500.00. The court also submitted to the jury the question of whether appellants Bright Bros., agreed to pay appellee Turner a contingent fee of $500.00; but the jury appears to have found nothing for Turner on this item. It therefore is unnecessary for us to discuss the correctness of the instruction submitting the question of contingent fee to the jury as there is no cross-appeal.
A fee in retainer may be fixed and definite both as to amount, time of employment and time of payment. A retainer in that sense is the act of a client by which he engages an attorney to manage a cause, either by prosecuting it when he is plaintiff, or defending it when he is defendant (Boiivier). If the retainer fee is definitely agreed upon as to amount, the attorney must hold himself in readiness to represent the client according to the scope of employment for which he is retained, even though no litigation is pending at the time of employment. He cannot take a fee on the other side. The retainer is for the purpose of obligating the attorney to represent the client as well as to prevent him from taking a fee on the other side. As said in 6 O. J. 630; “The payment of a retainer has no relation to- the obligation of the client to pay his attorney for the services which he has, retained him to perform. In other words, the retaining fee is an engagement fee; that is, a fee to engage and hold an attorney to render services to a client in a particular case, or generally, as occasion may arise.” It follows, therefore, that if appellants, Bright Bros., retained appellee Turner as counsel, agreeing to pay him $500.00 therefor,
We find no error to the prejudice of appellants and the judgment is affirmed.
Judgment affirmed.