88 Neb. 560 | Neb. | 1911
Alphia M. Shevalier brought this action in the district court for Lancaster county to obtain the cancelation of a real estate mortgage executed by her to the defendant, Thomas J. Doyle, to secure, among other things, the payment of attorney’s fees. The defendant had the judgment, and the plaintiff has appealed.
It appears that on the 12th day of June, 1908, the plaintiff was arrested on a charge of grand larceny, and employed the appellee to conduct her defense; that when she was taken before the examining magistrate she procured continuances from time to time until the 10th day of July following, at which time the mortgage in question was executed and delivered to the defendant in this action. One of the conditions contained in the mortgage reads as follows: “The purpose of this conveyance is to indemnify the said Doyle against damage or loss by reason of having become surety for the appearance of the said Alphia Shevalier in the district court of Lancaster county, Nebraska, at the next term thereof, to answer the charge of felony, and also to secure the payment of attorney’s fees for defending her against said charge. * * * These presents are upon the express condition that if the said Alphia Shevalier, her heirs, executors, or administrators,' shall pay or cause to be paid to the said Thomas J. Doyle $500, and faithfully keep the conditions of said
It further appears that in the early part of the month of August, 1908, the plaintiff was arrested on a charge of perjury, and employed Mr. Doyle to defend her in that suit. There is testimony in the record which tends to show that his fee in that case was to be $500, and that the mortgage in question was to stand as security for the payment thereof. This evidence is contradicted by the plaintiff, and therefore it may be said that the testimony is conflicting upon that point. The defendant performed his part of the agreement by furnishing bail for the .plaintiff in both of the cases above mentioned, and thus procured her release from custody. It also appears that the defendant served the plaintiff faithfully by appearing for her in all of the proceedings before the examining magistrate in both cases, and entered upon the work of preparing her defense against both charges in the district court, and it is nowhere suggested' that he failed to faithfully and skillfully perform his full duty in that behalf. At a later date, however, and some time about the 1st of September following, the plaintiff caused the defendant to be informed that she had employed other counsel, and that his services were no longer required. After that time, however, the defendant appeared for her in the district court and filed a motion to quash the information in the perjury case, but when the name of the attorney who succeeded him had been properly entered of record, as counsel for the plaintiff, the defendant accepted his discharge and withdrew from both cases. Thereupon the plaintiff tendered him the sum of $50 as full payment for his services, and demanded a release of the mortgage in question. The tender was refused, and this action was brought to cancel that instrument.
Defendant’s answer set forth the foregoing facts by way of a cross-petition, which also contained an allegation that a retainer in the two cases above mentioned and the serv
The plaintiff now contends that the defendant’s, cross-bill was based solely upon a special contract, and therefore he could not recover upon a quantum meruit, and in support of that contention cites Powder River Live Stock Co. v. Lamb, 38 Neb. 339. In that case, however, it appears that the pleadings contained no allegation which would sustain a recovery upon a quantum meruit; while in the case at bar the defendant’s cross-bill contains an averment of the reasonable value of the services performed by him under the contract before the same was abrogated or annulled by the plaintiff. While this averment may not be as full and complete in all respects as the ordinary plea of quantum meruit, still, in view of the rule that after judgment a pleading will be liberally construed, we are of opinion that the averments of the cross-petition are sufficient to sustain the judgment of the trial court.
The plaintiff also contends that the defendant not having performed his contract by defending her in the district court is not entitled to any compensation, and judgment should have been rendered in her favor. In View of the fact that plaintiff tendered the defendant $50 for his services as a part of her demand for a release of the mortgage in question, this contention is not entitled to receive serious consideration.
On the other hand, the defendant insists that the meas
When the plaintiff discharged the defendant, it appears to have been done without any just cause whatsoever. He; accepted the situation with the dignity becoming a reputable attorney, and his conduct in all respects accords with the best ethics of the profession. The plaintiff’s testimony clearly shows that her tender of $50 was'inadequate and insufficient, and therefore she was not entitled to have her mortgage either released or canceled.
Finally, counsel for the plaintiff contends that the mortgage was given in part for an illegal consideration, and was therefore void and cannot be enforced. Without passing upon the question as to whether that part of the contract which required the defendant to sign plaintiff's recognizance for her appearance in the district court for Lancaster county was illegal and void, it is sufficient to say that so much of the consideration as relates to the agreement for the payment of counsel fees is valid and is separable from the other portion of the agreement, and therefore it may be enforced in this action. Parish v. Stone, 31 Mass. 198; Sims v. Alabama Brewing Co., 132 Ala. 311, 31 So. 35; Richardson v. Scott’s Bluff County 59 Neb. 400; Stroemer v. Van Orsdel, 74 Neb. 132, 143.
Affirmed.