69 Miss. 408 | Miss. | 1891
delivered the opinion of the court.
The contract sued on is an entire one. It secures upon the one side the services of Messrs. Lacey & Clarke, as attorneys, in the suit of appellant against the Okolona Savings Institution, and upon the other side it secures from Mrs. McIver the lowest fee chargeable for such professional services under the fee-bill of the Okolona bar. The services were to cover the entire litigation, and were to be paid for by such lowest fee. Not each step taken, or each labor performed, in the progress of the cause, was to be paid for, but the litigation in its entirety was to he conducted by the attorneys, and paid for by the client. The contract was joint with the attorneys, and their right of action thereon is a joint right.
The license tax was payable by each member of the law firm. It is imposed, by § 589, on each person practicing law, and not npon each firm practicing law, and so must be paid by each person, whether practicing alone or in connection with one or more others as a firm. By this section, too, it is declared that “ all contracts made with any person who shall violate this act, in reference to the business carried on in disregard of this law, shall be null and void.” And by the same section a peualty
The supposed difficulty in the ease before us arises out of the fact that Clarke, one of the law firm in question, is shown to have paid the privilege license tax required, and the assumption that this payment by one member of the firm will operate to relieve' Lacey & Clarke, either wholly or partially, of the incapacity which is imposed upon one member of the firm as a person. This difficulty, however, is not real. The firm was an entity, engaged in the practice of law. The contract which gives rise to the question we are considering, was a single, entire one. The right of action under that contract is joint, as to Lacey & Clarke. The business, as to Lacey, was clearly unlawful. His capacity to successfully contract in the business in which Ms firm was engaged was “infected with fatal infirmity;” and this fatal infirmity, inhering in one of the essential parts of the single entity — the law firm
It is said by counsel, however, that, even if the contract of Lacey & Clarke with appellant be non-enforceable by the appellee, still the appellant properly lost below, and must lose here, because she is seeking affirmative relief by her cross-bill against the appellee, and has not offered to do equity by paying what is due from her under the condemned contract. The reply is that appellant is not voluntarily in the court at all. She was brought in at the instance of appellee, in an effort, in part, to enforce collection of the sum supposed to be due under the ihfected contract; and, defensively, to meet this attempt, she shows the insuperable barrier to a successful recovery on Lacey & Clarke’s claim against herself. True, appellant asked leave to set up this defense by an amendment to her answer and cross-bill, but it is clearly by way of answer, as showing the incurable infirmity in the claim. The effect of this defensive matter, if successfully pleaded and supported, will be to disentangle appellant herself from the demand of Lacey & Clarke’s assignee, and to leave herself free to collect the balance due her by appellee by enforcing'against Siddall payment of the purchase-money notes then held by her as security for payment of Mrs. Clarke’s note to appellant; and this, in fact, is just what appellant sought to do — to have affirmative relief by enforcing the vendor’s lien against Siddall. The contract of Lacey & Clarke with Mrs. McIver is not enforceable, and the defense attempted to be set up by appellant in the court below was properly pleaded, and should have prevailed for her protection.
Reversed and remanded.
