Ennis v. Hultz

46 Iowa 76 | Iowa | 1877

Adams, J.

l. contbact: attorney’s fees. A lawyer makes a contract with his client to prosecute his case for $150. After doing a portion of the work he retires from the practice and turns the . case over (or attempts to do so) to a former partner, who prosecutes it to final judgment and charges $350 and is allowed to recover it. If the client knew that the case was thus turned over, there might be some reason for so holding. But in the absence of such knowledge we are clear that the special contract could not be considered as waived. What, then, is the fact in this case in regard to such knowledge? The statement of facts set out as preliminary to the opinion is a literal copy from the findings of the Circuit Court. Taking that statement as correct, it will be seen that the defendants had no knowledge that the case had been turned over to the plaintiff. Dixon advised Davis, the defendants’ agent, that “he had taken the plaintiff into the case with him.” This is quite a different thing from turning the case over to the plaintiff. Now, the defendants only knew what Dixon advised their agent. They did not even have reason to suppose that the case was turned over. If, indeed, the defendants had seen the plaintiff assuming the entire management of the case, they would even then had no reason to suppose that the case had been turned over to him, or, in other words, that Dixon was out of it. All that defendants could have seen was that plaintiff was doing all the work. That would have been consistent with the idea that Dixon still shared the responsibility, and was still in the case, as Dixon certainly represented to defendants that he was, when he advised their agent that “he had taken the plaintiff into the case with him.” The plaintiff seems to attach importance to the idea that he is an innocent party. To this it may be said that he knew well that Dixon had no power to turn the case over to him without defendants’ consent, and that Dixon never did turn the case over to him unless that consent was gained. The defendants did not employ Dixon to turn the case over to some one else. In so doing, he was not acting as their agent. If plaintiff undertook to take the case off of Dixon’s hands, and employed Dixon to notify defendants and obtain their consent, in such notification Dixon was plaintiff’s agent, and if he notified defendants that “he had taken plaintiff into the case with him” contrary to the fact, the plaintiff should suffer and not the defendants. This case, then, must be decided upon the ground that Dixon merely took the plaintiff' into the case with him. That is all the defendants knew about it, and in the absence of evidence that defendants consented to the termination of Dixon’s responsibility, that must be considered as the real fact. What, then, is the law where an attorney takes a case upon a special contract and afterwards associates an attorney with him? Or what is the law, in any case, where a person contracts to do a job of work for a certain sum and afterwards associates a person with him? Can the person thus associated recover upon a quantum meruit against the employer of liis employer? The question is easily answered. No implied contract of employment exists in such case, because the person thus associated works under an express contract with his immediate employer which excludes it.

The plaintiff in the case at bar cannot be allowed to say that the defendants looked on and saw him do work for them, and therefore impliedly agreed to pay him, because the plaintiff had an express contract with Dixon. Here, then, is the test, and it will enable us to distinguish this case from McCrary v. Ruddick et al., 33 Iowa, 521, upon which plaintiff relies. That was a suit brought by McCrary to recover for professional services. He had defended the defendants in a former suit. One of them was an attorney by the name of Galland, who had made a special contract with his co-defendants to defend the suit and employ assistant counsel. He employed McCrary, not as his employe to carry out his special contract, but as the employe of all the defendants. Galland did nothing in the case, and there was nothing whatever to indicate that he was regarded as an attorney in the case. The circumstances were such that McCrary had a right to assume that he was employed by all the defendants. In the case at bar Dixon, the plaintiff’s employer, sustained no relation to the case but attorney. He had done a part of the work when plaintiff was called in. The plaintiff knew that his contract was with Dixon, who, as an attorney, had already taken and was prosecuting the case.

The case of Shelton v. Johnson, 40 Iowa, 84, relied upon by plaintiff, involves, too, a different principle. One Findley was attending Johnson as a physician, and while so attending him called in the plaintiff, Shelton, as a consulting physician. Johnson claimed that he had agreed with Findley that he should pay Shelton, but Shelton had no knowledge of the agreement, and the court held very properly that Shelton could look to Johnson. Shelton was called in for consultation. He was employed to do, not what Findley had been previously employed to do, but what Findley could not do, for no person can hold a consultation with himself.

We are of the opinion that the judgment of the Circuit Court must be

, Eeveesed.