27 Pa. Super. 463 | Pa. Super. Ct. | 1905
Opinion by
This is an action by an attorney-at-law against his client, to recover compensation for professional services. The defense is that there was such negligence in the performance of the services that the client suffered serious loss, and that for this reason the plaintiff has no just claim to compensation.
An attorney is not liable to his client for a failure to succeed, resulting in loss to the client, unless this is due to his mismanagement of the business intrusted to him, through bad faith, inattention or want of professional skill. Without discussing at length the degree of skill and care required of an attorney, it is sufficient for the purposes of the case in hand to say that he must, at least, be familiar with the well-settled principles of law and rules of practice which are of frequent application in the ordinary business of the profession; must observe the utmost good faith toward his client;; and must give such attention to his duties, and to the interests of his client, as ordinary prudence demands, or members of the profession usually bestow. For loss to his client, resulting from the lack of this measure of professional duty and attainments, he must be held liable; and such loss forms an equitable defense to his demand for compensation.
Tested by this standard, there was an obvious lack of pro
The proceedings subsequent to the return day of the fi. fa. were wholly irregular, and no title passed by the sale. They were in disregard of well-settled rules of practice, which every attorney must be expected to understand and observe. An attorney is not, indeed, responsible for a mistake of the sheriff to which he in no way contributes. But when he acquiesces in such a mistake, and directs further proceedings, founded on it, he makes the error his own, and is answerable for the loss
The contention that the defendant, by his continued employment of the plaintiff after the inquisition and sale, ratified his acts, cannot be sustained. Through lack of professional knowledge, the defendant was unable to judge of the situation, and trusted to the plaintiff for information; while it was not until October 11, 1901, that it was judicially determined, in Boyer v. Miller, 200 Pa. 589, that he acquired no title to the land. Meantime the plaintiff, orally and in correspondence, steadily insisted that the proceedings were regular. After assuring him for years that his title was good, it comes with an ill grace for the attorney now to contend that his client should have known that the law was otherwise, and ceased to employ him. When the condition of the title became manifest, the further employment of the plaintiff appears to have been chiefly in negotiations designed to minimize the loss; but while the plaintiff evidently secured the best result attainable, his employment for the purpose committed the defendant to nothing by way of ratification of the acts to which the loss was due.
The plaintiff further contends that as the plea of set-off was not entered until more than six years after the inquisition and sale, the statute of limitations is a bar to any claim on the part of the defendant growing out of the alleged negligence. This view rests on a misconception. When an action is based on the defendant’s negligence, the statute of limitations operates on it as on any other. And when a demand, arising from the plaintiff’s negligence in an independent transaction, is set up by the defendant as a counter claim, under our defalcation act, this is, in like manner, subject to the bar of the statute. But negligence on the part of the plaintiff, inherent in the cause of action, and operating to defeat it, stands oh different ground. In an action on a contract, the right of recovery is based on performance; hence, whether due to negligence or to other causes, nonperformance is a full defense, and ill performance a defense pro tanto. Such defense is not merely a set-off, balancing or reducing the plaintiff’s demand, but strikes at his
Notwithstanding the able argument in behalf of the appellant, and a careful examination of the charge and evidence, we are unable to find any ground on "which the specifications of error can be sustained. In ruling on questions of evidence, and in the charge and answers to points, the trial judge was considerate of the plaintiff’s position, professionally, and carefully guarded his rights in the premises. The matters in controversy were submitted to the jury with instructions that gave the plaintiff at least every advantage to which .he was entitled, and there appears no reason for regarding the verdict as unwarranted by the evidence.
Judgment affirmed.