222 P. 280 | Nev. | 1924
Lead Opinion
These cases were consolidated and tried as one case in the court below, and upon the calling of the cases for trial it was agreed in open court that the decision or judgment in either case should be conclusive and binding on the parties in the other. The two appeals involve
For present purposes the facts and the proceedings may be stated to be as follows:
On January 10, 1908, Mary E. Carter, then the wife of Sardis Summerfield, employed plaintiffs as her attorneys to represent her in all the difficulties then existing between her and her husband, Sardis Summerfield. On that date she promised and agreed in writing to pay .plaintiffs for their services the sum of $5,000, contingent upon the settlement of her marital differences by divorce proceedings or otherwise; it being understood and agreed that any allowances made by the court for attorneys’ fees in the divorce proceedings should be credited on said sum of $5,000. Before any formal steps had been taken by her said attorneys, the husband sued his wife for a divorce. He prayed decree, and also that the community property of the marriage, alleged to be of the value of approximately $75,000, be awarded to him. The defendant answered the complaint, and in her answer by way of cross-complaint prayed a divorce, upon the ground of extreme cruelty, and also prayed that the community property, of the alleged value of about $100,000, be equally divided between the parties. Thereafter the defendant made formal application to the court for an order requiring her husband to pay to her or into court a sum necessary to enable her to defend the suit and carry on her cross-action. Pending the hearing, her attorneys apparently became apprehensive that her application for attorneys’ fees would be denied. Before the court had ruled upon her application, the defendant met with her attorneys in the office of one of plaintiffs and entered into an agreement in writing, whereby the defendant promised and agreed to pay plaintiffs the sum of $5,000 for their services in the case of Summerfield v. Summerfield, with the understanding that any allowance made by the court in the cause for attorneys’ fees would be credited upon the said sum of $5,000. Contemporaneously with the making of this agreement, to wit, on January 29, 1908, the parties.
The divorce suit of Summerfield v. Summerfield came on for trial before a jury. About twelve days were consumed in the trial of the bitterly contested issues, and the jury decided that neither party was entitled to a divorce, and the court so adjudged and dismissed the proceedings at the cost of the husband. Thereafter the wife, without knowledge of her attorneys, made a settlement with her husband of her right and interest in and to the community property of their marriage. Thereafter the husband again sued for divorce, alleging as grounds therefor abandonment and desertion, and also alleged in his complaint that the parties had amicably settled their rights in and to the community property of the marriage. The defendant did not apprise her said attorneys of this action, made no appearance therein, and upon her default for her failure to appear and answer her husband was granted a divorce. In the decree the court expressly recognized and confirmed the amicable settlement made by the parties with respect to the community property.
Thereafter, upon demand of plaintiffs, Mrs. Summer-field declined and refused to pay plaintiffs for their services, disclaimed owing them any sum for their services, and repudiated her obligation of January 29, 1908. Thereafter, in January, 1912, plaintiffs sued to recover both on the written contract of January 29, 1908, and on quantum meruit for the sum of $5,000. Subsequently the defendant intermarried with Jennings William Carter, and in 1914 plaintiffs amended their complaint to conform to that fact and made her husband a party pro forma. Thereafter, in 1921, plaintiffs filed their second amended complaint, stating therein, as iri the original complaint, two causes of action; one upon the
It is conceded that when the defendant employed plaintiffs she had no “separate property,” as that term is defined by our so-called married woman’s act (Rev. Laws, 2155, et seq.). The principal, if not the only material, conflict in the evidence is that relating to the facts and circumstances surrounding the cancelation of the defendant’s first agreement of employment, bearing date of January 10, 1908, and the making- of the agreement of January 29, 1908. According to the testimony of the defendant, plaintiffs failed and neglected to explain to her the reason or the necessity for the cancelation of her original agreement to employ plaintiffs on a contingent fee basis, and failed and neglected to advise her of the legal effect of the contract sued upon and of the law with respect to the allowance of counsel fees in divorce actions. According to plaintiffs’ testimony, the defendant was fully informed and advised of the facts and the law and signed the contract sued upon knowingly and willingly.
The plaintiffs and the defendant in both actions, being dissatisfied with the court’s findings and conclusions and the judgment thereon, gave separate notices of appeal to this court from the judgment and orders denying their motions for a new trial. The plaintiffs and appellants, C. L. Harwood and Seeds & Howard, voluntarily dismissed their appeals, leaving the two appeals of Mary E. Carter to be considered in one opinion. The double appeals account for the confused entitlement of the cause herein and the unduly prolix statement of the case.
Counsel for the defendant make five points of law upon which they claim reversal of the judgment: First, that the contract sued upon is void as against public policy. Second, that the contract sued upon, having been entered into when the relationship of attorney and client existed, and plaintiffs having failed, through ignorance or negligence, to inform the defendant of the legal effect of the contract exacted of her, or to inform her of the law with respect to the allowance of counsel fees, is void. Third, coverture. Fourth, the statute of limitations. Fifth, res adjudicata.
Counsel for defendant argue that, conceding the contract sued upon to be in all respects valid and legal, the original complaint having been filed in the year 1912, and the second amended complaint having been filed in the year 1921, by which amendment plaintiffs for the first time seek to recover the reasonable value of their services, the count on quantum meruit as amended is barred by the statute of limitations. This contention is manifestly due to a misapprehension of the facts. The amendment states no new and distinct cause of action. It is simply a new count for the same cause, the first count being based upon a written agreement, while the second count is upon an implied contract for the same services. Both counts are, therefore, for the same cause of action; hence the amended complaint cannot be resisted on the ground that the cause of action
It is argued on behalf of the defendant that the contract sued upon, having been entered into when the relationship of attorney and client existed, and it appearing from the evidence that plaintiffs wholly failed and neglected to give to the defendant full information and explanation both of the facts and of her legal rights in respect to the allowance of counsel fees as provided by law in divorce actions, is void.- Conceding, for the sake of the argument advanced by counsel, that plaintiffs failed and neglected to give to their client full information and explanation of the facts and the law relative to the allowance of counsel fees, still it is well established that if the contract is not inherently malum in se or malum prohibitum the attorney may recover for the reasonable value of his services. Thornton on Attorneys at Law, sec. 438; 2 R. C. L. sec. 128, p. 1046.
Counsel for the defendant claim reversal upon the ground that the contract sued upon is void as against public policy, in that the plaintiff’s compensation, though for a fixed sum, was in fact dependent on success and contingent upon the division of the community property of the marriage. We are in entire accord with the contention that the first contract entered into upon a contingent fee basis was void as against public policy, but this contract was canceled. If the second contract, the one sued upon, is valid, it will not be abrogated because an attempt is made to merge it in the void contract. Culley v. Badgley, 196 Mich. 414, 163 N. W. 33, L. R. A. 1917F, 362.
Plaintiffs base their right to recover on both the express and implied agreement of the defendant to pay them for legal services rendered her in an action brought against her by her husband for a divorce. One of her defenses was that of her coverture. By reason of this defense we are urged to decide whether or not a married woman without separate property may make
The services performed by plaintiffs were in no sense illegal, either intrinsically or by reason of the circumstances under which they were rendered or under the divorce law of this state. Hence we conclude that the judgment for the reasonable value of plaintiffs’ services on a quantum meruit is sustainable. 2 R. C. L. sec. 128, p. 1046. See annotator’s notes, 2 L. R. A. (N. S.) 261; 38 L. R. A. (N. S.) 1202.
It is true the jury decided in the divorce proceedings that neither party was entitled to a divorce, and the court so adjudged; but, nevertheless, it was through the efforts of plaintiffs that the husband’s action for divorce was successfully resisted. It was for the services performed for the defendant in that action that the trial judge rendered judgment in favor of the plaintiffs for the sum of $2,000. It is undisputed that, shortly after the trial and the rendition of the judgment of dismissal of the divorce proceedings, the defendant herein made an amicable adjustment with her
It is argued on behalf of the defendant that the refusal of the court in the divorce action of Summerfield v. Summerfield to require the husband to pay counsel fees to enable the wife to carry on or defend the action precluded plaintiffs from maintaining this action on the principle of res adjudicata. We fail to appreciate the force of counsel’s reasoning, on this proposition. Section 5843 of the Revised Laws provides that in any suit for divorce the court or judge may, “at any time after the filing of the complaint, require the husband to pay such sums as may be necessary to enable the wife to carry on or defend such suit. * * * ” This provision has been repeatedly construed and applied in numerous cases in this court. In Lake v. Lake, 16 Nev. 363, 367, 17 Nev. 230, 30 Pac. 878, it is held that the statute is only affirmatory of the common law to enable a destitute wife to defray the expenses of her action. It is apparent that counsel fees are allowed to the wife and not to her attorney. 2 Am. & Eng. Ency. Law, p. 113. Her right to such fees is not an absolute right and is a matter to be determined by the wise discretion of the court or judge. In fixing the allowance the court is controlled by considerations other than the interest of the wife’s attorney. In the case at bar, the court, in the exercise of its discretion, refused the defendant’s
The court did not pass upon, nor undertake to pass upon, the defendant’s liability to plaintiffs by reason of her contract. The question here involved is one arising solely between the defendant and her counsel, which apparently did not concern the court in ruling upon the defendant’s application for counsel fees under Rev. Laws, 5843.
It is argued on behalf of the defendant that the plaintiffs, supposedly learned in the law, exacted of their client a contract for their own advantage and to her detriment, and, in furtherance of justice, plaintiffs should not be allowed to recover upon a quantum meruit. We are not in accord with this contention. Regardless of any infirmity in the agreement between the parties, if any there be, and ignoring the entanglements of the common law, if such exist in a case of this kind, the fact remains that the services performed were not illegal. The defendant was free to accept the services; they were not gratuitous; and, the defendant having .profited by the services, we see no reason why she should not be liable for the reasonable value thereof.
The judgment of the district court is clearly right and is affirmed.
Rehearing
On Petition for Rehearing
Rehearing denied.