146 N.Y.S. 1041 | N.Y. App. Div. | 1914
Lead Opinion
Frederic E. Camp, who was the executor of the estate of Hugh N. Camp, made a written contract with McCarty & Baldwin, lawyers, whereby they were employed to secure
The essential question is whether an action on the contract may be maintained. The appellant insists that although the contract was lawful and bound the lawyers, it bound the client only to such time as he saw fit to discharge them, to whom he would, in that case, owe a sum equal to the value of services rendered. In that view the contract continues at the will of the client, and may be terminated by the latter at any instant preceding the completion of the entire work, and thereupon the lawyer must, gathering such data as he may, carry the burden of proving the value of his services. What, if any, is the primary reason that peculiarly excludes members of one profession from the usual rule that a legally existing contract binds the parties to it ? The contract is lawful. If it be executed it is respected. It binds the attorney in duration of service to the full quantity of required achievement, and limits him to the stipulated compensation, whatever the magnitude of the labor. But undoubtedly, for good cause, either party may dissolve the relation, and the client may do it without cause. But what rational conclusion depends upon the admitted premise ? The contract creates the same relation that arises from a general retainer. It is immaterial that a formal contract more precisely sets bounds to the service. In either case the law permits the client to revoke the duty imposed on the lawyer and confide it to another. The lawyer, properly mindful of the spirit of his profession, may not accuse the client even of erring judgment, and if there be no stipulation to the contrary, must accept such compensation as he has earned, for he knew
The judgment, in so far as appealed from, should be affirmed, with costs.
Jenks, P. J., and Rich, J., concurred; Stapleton, J., read for reversal, with whom Putnam, J., concurred.
Dissenting Opinion
I dissent, upon the authority of Johnson v. Ravitch (113 App. Div. 810). In that case the attorney had an express contract
I think-the rules and principles, which are peculiar, were stated in Johnson v. Ravitch (supra). Why, in a contract between attorney and client, is the right of the client to break the contract emphasized if the consequences are the same as attend the breach of an ordinary contract ? Does the making of an express contract for compensation, fixed or contingent, destroy the reason for the rule which the courts have formulated with a peculiar relationship for its foundation ? The attorney in Johnson v. Ravitch did not submit his rights voluntarily.. He was haled to court by his client, seeking a substitution and asking for a fixation of his compensation, which
In Carlisle v. Barnes, No. 1 (102 App. Div. 573), while the chief question litigated was the existence of a contract, it must be conceded that the question of the proper measure of damage on a breach was decided according to principles applicable to the breach of an ordinary contract. We decided Johnson v. Ravitch the other way, presumably with that authority before us. All that it was necessary to decide in Matter of Albers Realty Co. (140 App. Div. 277) was that an attorney’s hen did not attach to a Ghent’s claim until the commencement of a proceeding to enforce or adjudicate it.
In Marsh v. Holbrook (3 Abb. Ct. App. Dec. 176) ah that was decided was that when an attorney did all the work he engaged to do, and his client accepted a satisfactory sum in settlement of his claim, the attorney could recover that proportion of the agreed compensation which the amount accepted in settlement bore to the amount claimed.
Putnam, J., concurred.
Judgment, in so far as appealed from, affirmed, with costs.