50 So. 969 | Ala. | 1909
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This record reveals the following-state of facts, briefly stated: The Legislature passed an act in 1903, establishing a dispensary in Alexander City, which prohibited any person from engaging in the saloon business in that town after the 1st day of January, 1904. W. P. Truitt, Joe Jackson, and John Irvin were saloon keepers in the town at the time the act was passed. Truitt and Jackson employed two attorneys to test the constitutionality of the act, making an express contract with them for a fee of |300, to be paid to them provided they succeeded in having the act declared invalid. It was understood and agreed that the proceeding to test the validity of the act should be carried on in the name of John Irvin, though he was not bound for the fee to the attorneys. “The whole
The plaintiff testified that he never had any agreement with Duncan about a fee in the case, that Duncan did not agree to pay him any fee, but that he had been informed that “Duncan was to do the paying in the case.” He further testified that he never had any agree
The action is in assumpsit, upon the common counts,, by the plaintiff (appellee here) against E. P. Duncan and John Irvin, to recover for services as an attorney claimed to have been rendered at the request of the defendants. There were verdict and judgment in favor of the defendant Duncan, and also in favor of the plaintiff against the defendant Irvin; the court having given the general charge with hypothesis, at the request of plaintiff, in writing, against Irvin. From the
It is a settled principle of law “that an attorney’s claim for professional services against persons sui juris must rest upon a contract of employment, express or implied, made with the person sought to be charged or his authorized agent.” — 4 Cyc. 984; 3 Am. & Eng. Ency. Law, 435; Humes v. Decatur Land Co., 98 Ala. 461, 13 South. 368; Milligan & Son v. Ala. Fertilizer Co., 89 Ala. 322, 7 South. 650; Grimball v. Cruse, 70 Ala. 544; Tisdale v. Troy, 152 Ala. 566, 44 South. 601. There is no pretense in this case that Irvin made any express contract of employment with plaintiff, nor that he had authorized any one to do so' for him; nor does the evidence tend' to show that he knew what was said between plaintiff and the attorney who invited him to come into the case. But we presume the theory of the plaintiff (he has no brief) to be that he was entitled to recover upon the principle that the law will imply a promise to pay a fair and reasonable compensation for services, rendered to another, which are knowingly accepted.—McFarland v. Dawson, 125 Ala. 428, 29 South. 327. This is a correct principle, and would probably be-of easy application if the attorney who invited plain-' tiff into the case had been in the employment of the defendant; but, as we have seen, he was not. He was acting in the case under an express contract of employment with others. And in this state of the case it was not within the power of that attorney to raise up a privity between plaintiff and Irvin; nor do.we think it could be asserted, as a matter of law, that what occurred between the attorney and the plaintiff created such privity.
But we find that the plaintiff testified (in addition to the evidence above recited) that, on the morning of
The views above expressed show that the circuit court erred in giving the charge for the plaintiff against Irvin, but committed no eiTor in refusing the charge requested by Irvin.
Reversed and remanded.
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