13 Tex. 532 | Tex. | 1855
Lead Opinion
The action in the Court below was commenced upon an agreement in writing between the appellant Smith, and the appellee Lipscomb, of the date of the 16th day of April, 1840, by which, in consideration of the matters therein mentioned, Lipscomb agreed to render his professional services as attorney at law, &c., in the land business of Smith,
On this agreement action was commenced by Libscomb, for the use of Lipscomb and Gillespie, in the District Court of Victoria county, on the 20th day of April, 1849, to recover the five thousand dollars. By the petition the agreement is sued on by proper averments, connected with an allegation, that, on the 22d day of June, 1845, by indorsement upon the agreement, the said Smith confirmed the same, and waived the law of prescription. The petition then avers that he, Lipscomb, had done and caused to be done, all and every thing on his part to be done and performed, to entitle him to the sum demanded, and then concludes with a breach, and the necessary prayer for relief.
The defendant, after service of process, entered his appearpearance by filing his answer, in which is a demurrer, and this assigned for cause: that said plaintiff cannot recover money of the said defendant for services performed as an attorney, or legal advice given to said defendant by another person, as claimed in said petition.
This demurrer was submitted to the Court by order preceding the order setting out the trial, &c,, and was overruled. And the first question is, did the Court err in making this ruling ? This is the main question, and as such will now be considered and disposed of.
The averment of the petition is, that Lipscomb had done and performed, and caused to be done and performed, all on his part to be done and performed. But this is said not to be sufficient, for the reason, that when Lipscomb was employed, he had no right to employ another; and it being alleged by Lipscomb that he had caused to be done, what was necessary
This we believe not to be the correct rule. We are satisfied that the correct rule is, that, in the case supposed, the case of an attorney, it is competent for him to substitute another in his room and stead, and if the client knew of the substitution, and either accepts the services of the substitute, or does not object, he is bound by the substitution. To this effect the law is laid down by the Supeme Court of the State. (Butler v. Allcorn, 8 Tex. R. 56.) The demurrer was, therefore, properly overruled by the Court below.
The trial was thereupon had ; during the progress of which various objections and exceptions were taken and questions reasoned, and a verdict and judgment was rendered in favor of Lipscomb. A new trial was asked for, overruled and appeal to this Court.
But a portion of the questions made in the Court below or in this Court, are thought to be entitled to notice.
It is contended, as it had been in the Court below, that the agreement sued on was with Lipscomb, who in consideration of the promise by Smith, agreed to perform certain professional services; and if true that Gillespie was substituted with the consent of Smith, express or implied, yet this was not properly given in evidence on the trial in the Court below, because there was no allegation to that effect in the petition.
Were it true that, to entitle Lipscomb to recover the five thousand dollars on the agreement, it was necessary for him to allege performance on Ms part, we would say that the allegation is sufficient. The performance, as we have seen by a substitute, is sufficient, when done with the consent of the party to be charged ; and this must go upon the ground that the performance by the substitute is the performance of the principal; and consequently an averment of performance, without allusion to a substitute, is good, and under it evidence might be given of such substitute, and performance by him. But this question does not properly arise.
Three determinate periods were fixed for the payment of the five thousand dollars in instalments, and from the nature of the acts to be performed by Lipscomb, it is either certain that the times fixed for payment would, or that they might arrive before the performance on the part of Lipscomb; for Lipscomb was to act as the counsel and attorney of Smith, in an extensive land litigation, which this record shows is not yet ended. The covenants are therefore independent of each other, and Lipscomb had a right to maintain his action, without averment of performance on his part. It is true, however, that Lipscomb having sued, after the relation of attorney and client had ceased, it was competent for Smith to show a failure of consideration, and then in answer to the case attempted to be made by the defendant, it was competent for the plaintiff to show that Gillespie was substituted to Lipscomb with Smith’s consent; and that Gillespie performed the covenants faithfully, until dismissed by Smith. This, however, would not be shown for the purpose of proving a cause of action, but in answer to the proof as to failure of consideration by showing that Lipscomb had not done what he had agreed to do; that whatever was done, was done and performed by Gillespie. The covenants being mutual and independant, showing the promise, the arrival of the time fixed for payment, and a failure to pay was all that was necessary to make out a cause of action by the plaintiff, and the proof as
The plaintiff'below, Lipscomb, then, was entitled to recover, though everything was not in fact done by him which was required by the agreement, because the act of Smith by preventing, excused the non-performance, and it was as if there had been a perfect performance by Lipscomb, and the new trial was properly overruled.
We think there was no error in the judgment of the Court, and that the same ought to be and accordingly is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. I regret that my conclusions as to the law of this case compel me to dissent from the opinion delivered by a majority of the Court. Feeling sensibly that I am as liable to err in my conclusions as others, I would yield my individual opinion and concur with the majority of the Court, if I did not believe that each member of the Court was bound by the highest obligation to decide the case submitted, according to the dictates of his own conscience and his individual judgment. Failing to concur in the opinion delivered by a majority of the Court, it is my duty to express my own judgment in this case, and some of the reasons upon which that judgment is founded.
This suit was filed on the 20th of April, 1849, in the District Court of Victoria county, by Abner S. Lipscomb, who
The defendant pleads in reconvention, alleging that plaintiff failed and neglected to attend to the business of the defendant as he was bound by his contract, and that he had to employ other counsel, &c. It is unnecessary to notice this branch of the case, as the opinion has reference to other errors assigned than those affecting the pleas in reeonvention.
The evidence contained in the statement of facts shows the contract as it is alleged in the petition ; that two petitions for mandamus were filed by and in the handwriting of Gillespie on the 3d of May, 1841, in the District Court of Travis county, the one in the name of the appellant and the other in the name of Plummer against the Commissioner of the General Land Office. The petitions were signed by Lipscomb & Gillespie as attorneys for plaintiff. The object of the petitions was to obtain writs of mandamus to compel the Commissioner of the General Land Office to issue patents for a large amount of the lands referred to in the contract between Lipscomb and Smith. These suits had been continued from Term to Term, and with the suit filed in August, 1845, by Janies Power, enjoining the proceedings in said cases, were still pending when Lipscomb was commissioned as Associate Judge of the Supreme Court on the 2d of March, 1846. Lipscomb did not attend the District Courts of Travis county, nor did he attend to the suits in person. Gillespie filed the petitions wherein Smith was plaintiff, and managed the cases in which Smith was a party or in which he was interested until he was dis
The defendant objected to all the evidence offered in relation to the professional services rendered by Gillespie, or tending to show that the services of Gillespie were substituted for the services of Lipscomb, with the consent of Smith, or showing that Gillespie had been discharged by Smith from the further management of Ms cases as attorney.
I have stated thus much of the pleadings and the evidence, in order that the view I take may be properly understood.
The demurrer might well be overruled, because the services of Lipscomb, as stipulated in the contract, not being conditions precedent to the payment of the five thousand dollars, but in contemplation of the parties, might be required long after the time specified for the payment of the money had elapsed, there was no necessity that he should allege performance on his part. The averment that he had performed his part of the contract, or that certain facts existed which discharged him from the performance, only became necessary when the defendant filed Ms answer, alleging that he had failed to perform his part of the contract, and setting up the fact that by his voluntary act in accepting the office of Associate Justice ot the Supreme Court, he had placed it out of Ms power to comply with Ms part of the contract. The plaintiff
In this case no such replication or amended petition was filed. And the only allegation in the petition, under which evidence could be introduced to destroy the effects of the defence set up, is the allegation in' the petition that “ Lipscomb has done or caused to be done all and everything incumbent on him to do under the contract to entitle him to the sum demanded.” This averment I do not think sufficient to admit evidence to show that the services of Gillespie were substituted with the consent of Smith for the services of Lipscomb, to carry out the contract, or to show that Smith had discharged Gillespie from the further management of his cases as attorney. In Paul v. Perez, 7 Tex. R., Justice Lipscomb says: “ The ££ principle that the allegation must be broad enough to admit i£ all the necessary proof, and that every material fact must be 45 alleged, has been often decided by this Court, first solemly i£ adjudicated in Mims v. Mitchell, 1 Tex. R. 443, and sustained by an unbroken train of decisions from that time ££ down to the present. See Coles v. Kelsey, 2 Tex. R. 541; Caldwell v. Haley, 3 Tex. R. 317; and, if there was proof 44 without such allegation, it should be disregarded. Republic v. Frost Thorn, 3 Tex. R. 499; Wright v. Wright, 3 Tex. R. 168; Carter and Hunt v. Wallace, 2 Tex. R. 206.”
In this case Lipscomb had voluntarily accepted the office of Associate Justice of the Supreme Court on the 2d of March, 1846, thereby placing it out of his power to perform his part of the contract, and equally out of his power to appoint an attorney to represent him in the Courts to save his contracts, because the attorney could only represent him, and he could not appear as attorney in any Court. The suits in reference to which Lipscomb’s professional services were then stipulated for, in the contract, were and are still pending. Most of the services, as shown by the testimony, were rendered by Gillespie subsequent to the appointment of Lipscomb as Associate Jus