1 Ind. 267 | Ind. | 1849
Debt, by Smith, administrator upon the estate of Philip Sweetser, deceased, against Isaac Coe, upon the following instrument, the declaration containing no common count.
“I promise to pay Philip Sweetser, or order, 500 dollars, to be paid, one-third in one, one-third in two, and one-third in three years from this date, value received, Dec. 16, 1842. t Isaac Coe, (Seal).”
The defendant pleaded three pleas, which were substantialty alike, and stated “that before and at the time of the execution of said writing obligatory, it was agreed, by and between the said defendant and the said Sweetser, that the said Sweetser should be employed for the said defendant, as an attorney and counselor at law, to advise and defend the defendant, to a final decision and determination, against all actions brought, or to be brought, in the Marion Circuit Court, against the said defendant, or against the said defendant and others, by the state of Indiana, for the supposed liability of said defendant to the state, growing out of, or connected with, the sale and the transfer of the' bonds of the state of Indiana; and that, in consideration of said employment, and that said Sweetser would faithfully comply with said agreement, said defendant executed to said Sweetser said writing obligatory, and for no other consideration what
' To each of the three pleas there was a replication, that the consideration had not wholly failed in manner and form, &c. There were issues upon these replications. Trial by jury; verdict for plaintiff for 250 dollars; new trial denied, and judgment on the verdict.
The evidence as to the express contract alleged in the plea, is as follows: ’ •
“ Calvin Fletcher, a witness, stated that he was present at the time the note in controversy was executed — that a similar note, for the same amount, was given, at the same time, to himself and Mr. Bwtler, and a like note, for the same amount, was given, at the same time, to Mr. Marshall, by Dr. Coe. The consideration of each of the notes was, that the person to whom it was given, should, as an attorney and counselor at law, defend Dr. Coe against the state, in any suits that might be brought against him, by the state, individually, or with others, for supposed liabilities growing out of his acts as fund commissioner, or in the sale of state bonds. The state had previously examined the matter in the legislature.” The witness further says: “ I considered it a usual employment, as an attorney and counselor, to defend the Doc
The Court gave this instruction to the jury: .
“ If you believe, from the evidence, that the consideration of the note upon which this suit is brought urns the employment of Philip Siocetser as an attorney to defend the defendant in any suits that might be brought against him for any act as fund commissioner, or for or on account of the sale of state bonds, and that Sweetser died before the causes were disposed of which he was employed to attend to, the plaintiff cannot recover the full amount of the note — but if you believe,. from the evidence, that Sweetser did perform services for the defendant in and about the causes for the defence of which this note was given, you. should give the plaintiff a verdict for the amount that the services are proved to have been worth, that he did perform before his death.”
Exceptions were taken, &c.
The plaintiff in error claims that, as his pleas were proved, he was entitled to judgment upon the issues upon them, whether they were good or bad; but we shall not find it necessary to inquire as to this. The Court below, in the instructions given; concede the existence of an express contract upon which the note in suit was executed, and we think, rightly. It was not given for a mere retaining fee, nor upon an employment generally as to all business, or in certain particular cases, without reference to the period or amount of service for which the sum specified was to be received as compensation. It was for defending Coe “ against the state in any suits that might be brought against him” by her in relation to a particular matter, and was for the whole consideration for such defence. No additional fee was to be given. The stipulation for the 500 dollars was a single entire contract. The
Had Mr. Sweetser continued in the defence of the suits against Coe till their final termination, he would formally have fulfilled his express agreement and could then have sued — the services rendered being retained by Coe — for his stipulated compensation; but in that event, had these services been negligently performed, contrary to the implied contract included in the express one, Coe could, perhaps, though as to tins we decide nothing, have set up such negligence by way of failure, or partial failure, as the fact might be, of consideration for his promise to pay. See Hawk v. Pollard, 6 Blackf. 108.
We may remark that we have nothing to do, in this suit, with the question of Coe,s liability on a quantum meruit for the service that Sweetser may have rendered him. We only here decide that there can be no recovery on the express contract.
The judgment is reversed with costs. Cause remanded, &c.
Where A. agreed to work for B. for a year for 120 dollars, but before the expiration of tire year voluntarily left B.’s service without any fault on the part of B. and against his consent, it was held that the contract was entire; that A. must perform the whole year’s service as a condition precedent to his right to recover anything under the contract; and that he could not renounce the contract and recover on a quantum meruit. —Starke v. Parker, 2 Pick. 267.
Where an infant made a special agreement to labor for a certain time for certain wages, and, before the time expired, left the service of his employer voluntarily and without any fault on the part of his employer, it was held that he might, nevertheless, recover on a quantum meruit for the services performed. But it seems that if the employer is injured by the sudden termination of the contract without notice, a deduction should be .made on that account. —Moses v, Stevens, 2 id. 332.—McMillan v. Vanderlip, 12 Johns. 165.—Thorp v. White, 13 id. 53.—Reab v. Moor, 19 id. 337.
See ante, p. 257.