Farrell v. Betts & Betts

Dec 17, 1918
8 Div. 558.
Reporters:
, ,
Before:
Brown
BROWN, P. X

[1, 2] The appellant’s contention that the amount of the defendants’ compensation for services rendered in the divorce suit was determined by the decree of the chancery court, and that they are precluded from claiming more than was there allowed, and therefore that the evidence relative to the question as to whether the amount retained out of the proceeds of ‍‌​‌​​‌​‌​​‌​​​​​‌‌‌‌‌​​​​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​‍the decree by the defendants was in excess of the reasonable value of the services rendered is not well grounded. The defendants were not parties to that suit, and the allowance was made to plaintiff as a part of her alimony, and not to or for the benefit of her solicitors. Rast v. Rast, 113 Ala. 319, 21 South. 34; Johnson v. Johnson, 195 Ala. 641, 71 South. 415.

[3, 4] There was no agreement between the plaintiff and the defendants that they should receive any part of the allowance made as alimony and attorneys’ fees as compensation for their services; and, if such agreement had existed, it would be pronounced champertous and void (Brindley v. Brindley, 121 Ala. 429, 25 South. 751), and the defendants would be remitted ‍‌​‌​​‌​‌​​‌​​​​​‌‌‌‌‌​​​​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​‍to the alternative of an amicable settlement or seeking a recovery on the quantum meruit (Holloway v. Lowe, 1 Ala. 246).

[5] Moreover, the evidence shows without dispute that the defendant rendered other services after the allowance was made, not within the contemplation of the parties when the amount of the allowance as attorneys’ fees was agreed on between the parties to the divorce suit. An agreement between the plaintiff and the defendant to the effect that she would pay the defendants a reasonable compensation for their services in the divorce suit would not be a champertous agreement because in the absence of such an agreement the law would imply a contract on her part to pay them a reasonable fee for their services. Wood ‍‌​‌​​‌​‌​​‌​​​​​‌‌‌‌‌​​​​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​‍v. Brewer, 66 Ala. 570; A. G. S. v. Hill, 76 Ala. 303; McFarland v. Dawson, 128 Ala. 561, 29 South. 327.

[6] On the issue of accord and satisfaction, the plaintiff’s testimony tended to show that the defendants, without fully disclosing to her the amount collected on the decree, induced her to accept the check for $800 and sign a release or receipt in full. This settlement was made during the existence of the relation of attorney and client between the plaintiff and the defendants, and this fact imposed upon the defendants the burden of showing that the amount retained by them out of the proceeds of the decree was no more than a fair and just remuneration for the services rendered. Dickinson v. Bradford, 59 Ala. ‍‌​‌​​‌​‌​​‌​​​​​‌‌‌‌‌​​​​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​‍581, 31 Am. Rep. 23; White v. Tolliver, 110 Ala. 307, 20 South. 97; Kidd v. Williams, 132 Ala. 143, 31 South. 458, 56 L. R. A. 879.

The defendants not only offered evidence tending to controvert the facts testified to by the plaintiff with respect to withholding from her the amount of the collection and tending to show that she was fully advised with respect thereto when settlement was made, and thereafter expressed her full satisfaction with the result, but also offered abundant evidence that the amount which they retained was no more than a fair and just compensation for the services rendered. The plaintiff saw fit to rest her case on the legal questions presented, and offered no proof as to the reasonableness of the ‍‌​‌​​‌​‌​​‌​​​​​‌‌‌‌‌​​​​​​​​‌​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌​‌‌‌‌‌​​​​‌‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌​​‍fee retained out of the proceeds of the decree by the defendants.

[7] The issue as thus presented was of fact, and, after a careful consideration of the evidence, we hold that the defendants met fully the burden of proof resting upon them. This disposes of all the questions presented by the record, and, no error appearing therein, the judgment will be affirmed.

Affirmed.