Perry v. Dicken

105 Pa. 83 | Pa. | 1884

Mr. Justice Clark

delivered the opinion of the court,, February 4th, 1884.

This action of assumpsit was brought by J. Charles Dicken, Esq., in part, to recover from Emma M. Perry his fees for professional services, rendered in an action of ejectment brought by her against Hugh Perry, and tried in the year 1874, in the District Court of Allegheny County. The question involved in the ejectment was, whether or not a certain deed, made in the year 1863, by John F. Perry (father of Emma M. Perry) now deceased, to Hugh Perry, for valuable real property on DuQuesne Way, in the city of Pittsburgh, was intended by the parties thereto simply as a security for money, and therefore a mortgage, or whether it was what it purported to be, an absolute deed for the premises therein, described.' The claim of the plaintiff here, so far as it is for professional services, is founded upon an alleged express agreement for a fee of f5,000, contingent upon the success of his client in recovering the disputed property.

That an attorney may agree with liis client to render services for a contingent fee, is now well settled in Pennsylvania; the learned counsel who argued the cause concede that the decisions of this court recognize the right of the members of the profession so to contract. Miles v. O’Hara, 1 S. & R., 32; Boulden v. Hebel, 17 S. & R., 312; Strohecker v. Hoffman, 7 Harris, 227; Dickerson v. Pyle, 4 Phila., 259; and Chester Co. v. Barber, 1 Out., 463, are all to this effect.

It is doubtless true that such a practice may sometimes lead to speculative litigation, or result in oppression, from an unconscionable bargain ; and, so far as its tendency is to the perpetration of these abuses, it does not tend to promote the highest standard of professional ethics. Yet it is certainly true, as stated by Judge Lewis in his Abridgement of the Criminal Law, that “ Many of the most eminent and upright gentlemen of the bar have felt no repugnance to this method of compensation; it has been practiced without the slightest censure by gentlemen who have risen to the highest legislative and judicial stations in the Commonwealth, and who have been distinguished ornaments of the profession.” As those, who have rights but no means to pursue them, are obliged to resort to this means of procuring legal redress, it becomes the duty of the courts, as we have already held, to see that no improper advantage is taken either of the ignorance or necessities of those who enter into such contracts. If, then, the agreement between Emma M. Perry and J. Charles Dicken was for his professional services as an attorney, the mere fact that his only hope of reward depended upion his success would not defeat its provisions or prevent his recovery of the sum stipulated. That the plaintiff’s services were rendered in the line of his profession as an attorney, and not otherwise, is established by the verdict; the learned judge of the court below in his general charge, instructed the jury that if the plaintiff “ failed to satisfy them by sufficient evidence, either of his employment as attorney, or of the existence of a contract made with him as such,” they should find for the defendant.

But it is said that Dicken not only participated in the trial as an attorney, but he was the principal witness in behalf of his client; that he was therefore interested in the result, and, as the amount of his interest was fixed only a short time before the trial, that it was against the policy of the law, and in derogation to his high privilege as a member of the bar that he should be thus called to testify. _ If it appeared that the contingent fee was a reward for his services as a witness, this contention would certainly be sustained; such a contract would be not only reprehensible but highly immoral, against public policy, and, therefore, illegal and void. There is nothing in the evidence to indicate that there was any corrupt intention to influence the testimony of the witness; it was known from the commencement of the proceedings in ejectment that Dicken’s testimony would be required; he was the only person present at the execution of' the deed, and who knew the true nature and character of the transaction with the intent of the parties thereto. His testimony, however, became more important and essential by reason of the death of a witness a few days before the trial. It is immaterial here whether the amount of his compensation was only determined a short time before the trial, or at an earlier' date, if the fee was for professional services, and that was a question solely for the jury; Dicken testifies however, that the amount had been fixed before the ejectment was brought, and that he thought he had been secured to the amount of $5,000 in the contract with Weir & Gibson, who were associated with him in the case.

Since the Act of 1869 no interest or policy of law, except as provided in that Act, will exclude a witness from the stand; the law of evidence, as it had been previously understood, affecting the admissibility of witnesses, was by that Act revolutionized, the former policy of the law was abandoned and a new one adopted. If no interest or policy of law will exclude even the parties from testifying, upon what principle can we hold that it is immoral and tends to perjury to admit the attorney to testify? We are ignorant of the fact that there is anything in the nature of the profession, or in its tendencies, which will justify any such imputation. If the interest of- the attorney is disclosed, as it was in this case, it affects his credibility and his testimony becomes a proper subject of discussion to the jury on that ground.

We do not hesitate to say that an attorney who has a just sense of propriety, will, so far as is consistent with his duty, decline to testify in behalf of his client, as the question of his own credibility and of the accuracy of his statements afford for him most indelicate questions for discussion. Absolute necessity may however in some cases disclose a duty which an attorney cannot disregard. Aside from this, if called as a witness, he is bound to testify, and certainly it cannot be against public policy, for a member of the bar to do voluntarily that which by the law he is obliged to do.

We are disposed to adopt the language of Woodward, J., in Strohecker v. Hoffman, 7 Harris, 227, where he says: “Agreements fairly made between counsel and clients, are as obligatory as between other parties; and when a desperate claim has been successfully asserted by counsel on the faith of an agreement that one-half of the recovery shall reward his skill and diligence, it is an ungracious plea to urge that the agreement was without consideration and void.”

If all that is assumed in the defendant’s points were true, we can discover no principle or policy of the law which would render the alleged contract illegal, and there certainly was no error in the refusal of these points, when that refusal' was accompanied by clear and explicit instructions that the plaintiff must show that the fee of $5,000 was for services to be rendered as an attorney, and not as a witness in the ejectment. We discover no error in the ruling of this ease, and the

Judgment is affirmed.

Paxson, Trtjnkey and Sterrett, JJ., dissented.