81 Ga. 615 | Ga. | 1888
Graham & Foute sued Conyers in the city court of Bartow county for $174.50, which, they alleged, he had received for their use, from certain heirs of Z. Felton, deceased, for services of the plaintiff's as attorneys at law in behalf of said heirs in certain cases against Sumner et al.; the contract of Conyers being to pay the plaintiffs half of the fees received by him, and he having received $859.90, and the plaintiffs only $510.75 and interest from July 5th, 1888. The defendant pleaded the general issue and payment. In his plea he alleged, in substance, that he employed Graham & Foute to assist him in the prosecution of a claim, and agreed to pay them half of his fee, and that his fee, by the contract with his clients, was one-sixth of the recovery; that after the money was collected, he did pay the plaintiffs half of the amount, as agreed, to wit, $510.75, for which they gave him a receipt, stating that the same was in full payment for all their services rendered in said case; and that the plaintiffs, at the time of their employment, knew that he was to receive a conditional fee of one-sixth of the recovery, of which he was to pay them half.
When the case came on for trial, the defendant entered a written demand for trial by a jury, and demanded a panel of twenty-four competent jurymen from which to select a jury to try the case. This demand, so far as it called for twenty-four jurors, was refused by the court,
We think that if the original fee which Conyers was to receive from his clients was one-sixth of the recovery, and if Conyers, when Graham & Eoute expressed dissatisfaction with this amount, proposed to them to wait until he could write to his clients and ascertain if they would be willing to give an additional amount, and they refused to wait but insisted upon a settlement on the basis of one-sixth of the recovery, and gave their full and final receipt for the amount due them upon this basis, they were not entitled to share in the extra amount which the heirs subsequently agreed to pay Conyers. As before stated, Conyers testified positively to this state of facts, and Graham & Foute admit that this is what occurred in the settlement between them and Conyers. We think, therefore, that the jury found contrary to the evidence when they returned the verdict against Conyers for half of the extra amount allowed him by his clients ; and the court should have granted him a new trial.
Judgment reversed.