47 Ga. 405 | Ga. | 1872
Concurrence Opinion
concurring..,
A majority of this Court are of opinion that there is sufficient evidence to support this verdict, and that under the rule so often asserted by this Court, the judgment of Judge Cole, refusing a new trial ought not to be disturbed. The evidence to our mind is conclusive that Mr. Irvin ought to be paid for the collection of all this money. It was a mere subterfuge for Parker to step in after Irvin had enclosed Scott so completely in his net that escape was impossible. The success of Mr.
Altogether we think Mr. Parker has no ground to complain. By Mr. Irvin’s skill, prudence and knowledge of the art of collecting money he has got a large debt, that all the testitimony shows was apparently hopeless, paid, and he shows,
Dissenting Opinion
dissenting.
This was an action brought by the plaintiff, as an attorney at law, against the defendant to recover an account of $600 00 for professional services, alleged to have been rendered the defendant in collecting an insolvent claim on one Scott for $1800 00. On the trial the jury found a verdict for the plaintiff, for the sum of $250 00, with interest from the commencement of the suit, exclusive of the $100 00, which the plaintiff had previously received from the defendant, making the sum of $350 00, for the services rendered in the case. The defendant moved for a new trial on the ground that the verdict was contrary to law and the evidence, and because the plaintiff’s account was barred by the statute of limitations, which motion was overruled by the Court and the defendant excepted. It appears from the evidence of the plaintiff, that the defendant placed in his hands an execution in his favor, against Scott for about the sum of $1800 00, fur collection in the month of June, 1866; that he learned from sources of information accessible only to himself, that Scott had a contract with the Southwestern Railroad to cut stringers, by which he was realizing a large sum per month, and that by garnisheeing the railroad company he could enforce the collection of the fi. fa; that he sued out a summons of garnishment against the railroad company in terms of the law, but which does not appear to have been served upon the railroad company. There is no positive evidence in the record that the plaintiff notified Scott that he had'sued out the summons of garnishment, but it is a fair presumption from the facts disclosed therein, that he did so notify him. Scott promised the plaintiff, as the attorney of Parker, to settle his claim in three payments; two of $600 00 each, and one for $557 00. On the 25th October, 1866, the plaintiff collected from Scott $600 00; $500 00 of which was paid over to defendant, plaintiff retaining $100 00 in his hands.
The plaintiff introduced as witnesses W. Poe, Esq., J. M. Nisbet, Esq., Richard K. Hines, Esq., Richard Hobbs, Esq,, .and W. E. Smith, Esq., attorneys at law. Mr. Poe testified, that under the circumstances, he would consider $300 00 a reasonable fee for ■ securing the claim. Mr. Nisbet testified, that under the circumstances, he .would consider twenty per .cent, a reasonable fee, that in cases of great difficulty, when the defendant was insolvent, it was_ customary to charge a higher per cent. The testimony of the other witnesses was substantiallyvthe same as to the value of the services under the circumstances, that is to say, the securing and collection of the full amount of the debt for the benefit of the plaintiff by the attorney, out of an insolvent debtor. The plaintiff in this case seeks to recover from the defendant, for professional services actually rendered in the collection of an insolvent claim, .and there being no special contract, he can recover nothing more: Code, 441. The fundamental error on. the trial,-is in the assumption that an attorney at law is entitled to recover from his client for his professional services, in proportion, as
In my judgment, the verdict rendered by the jury in this case is contrary both to the law and the evidence. Under the law, the plaintiff was only entitled to recover for services actually rendered, and the evidence does not show what the ser- ■ vices actually rendered in the ease by the plaintiff were worth.
The law has wisely declared the rule in all cases where no special contract is made between attorney and client, and the Courts should enforce it. The object of the law was to prevent the introduction of just such hypothetical and speculative testimony, in relation to attorneys’ fees, as was introduced on the trial of this case, and to confine the investigation to the services actually rendered by the attorney. The statute of limitations was not pleaded in the Court below, and therefore, could not properly be considered by the Court.
In view of the facts contained in the record and the law
Lead Opinion
Let the judgment be affirmed.