80 Fla. 423 | Fla. | 1920
(after stating the faets.)
It appears from the record in this case that at the time the order was made by the Circuit Judge, overruling the demurrer and allowing a decree pro oonfesso and reference to a master that the object sought by the complainant had been accomplished. A conveyance of the mortgaged premises had been made to it, the deed delivered to complainant’s counsel and possession of the mortgaged premises delivered to complainant. The action of Attorney Bull in bringing up the demurrer for settlement was not done in the interests of the complainant, but done by him solely for his interest and for no benefit of his client. He had been advised that his demand for a fee Avas refused, and it is clear that all steps taken by him on and after February 1st, 1918, were taken by him for his interest and not that of his client.
It is apparent that the entry of the final decree was solely for the purpose of attempting to collect a fee for the benefit of Solicitor Bull, The record shows that there was a dispute between the complainant and its then solicitor as to the amount and reasonableness of the fee to be paid Bull for the services he had rendered.
An attorney is entitled to compensation for services rendered, and in proper proceedings may enforce the collection of such compensation. An attorney employed at a fixed fee to perform certain services cannot be deprived of his compensation by his client preventing the performance of such services by settlement. Where an attorney performs services for which there is no agreement as to his fee, he will be entitled to recover qumitum meruit. 2 R. C. L. 1046.
Ordinarily, in foreclosure proceedings in this State, attorneys where the mortgage provides for attorneys’ fees, accept the sum allowed by the court as their fee, but such fees are allowed the mortgagee and not the attorney. Such fee is intended as an indemnity to the mortgagee for expenditures necessarily made to protect his interest. Jones Mortgages, Sec. 359.
The facts in. the instant case show clearly to our mind that at the time the final decree of foreclosure was rendered, the mortgage had been settled by the acceptance of a deed conveying the mortgaged premises to the com
If the facts establish this contention, which we do not think they do, then certainly the decree should be set aside for the reason that there was an agreement to accept the deed and that there should be no deficiency decree against the defendant, Pittman, and the foreclosure decree sets out that there shall be no deficiency decree entered thereon and certainly no court of equity will permit a party to receive benefits for which he has given nothing.
The facts disclosed in this record show that at the time the order was entered on the demurrer, there had been a settlement of the case by the giving of the deed to the property in litigation by which the mortgaged premises were conveyed by Pittman and wife to the complainant, and the only condition to be fulfilled was the delivery of the satisfaction of the mortgage. Mr. Bull’s contention to the contrary was incorrect. He had been the attorney and agent of complainant and had transacted all the business relative to the litigation. The attorney for the defendant, Pittman, was also aware of these facts, and, in our opinion, the attorney should have made known to the Circuit Judge the facts relative to this deed, and had this been done, the court would not have entered the decree. It was the duty of Bull, when he was advised by his client that it would not pay the fee he demanded, to
While we do not agree with the views of the complainant as to the amount of the fee to be allowed: Bull, and we believe that on this feature of the case the complainant has an entirely wrong view of the case, we think that the conduct of Bull in procuring the reference to the Special Master and the entry of the foreclosure decree, was under the circumstances an improper proceeding, and that when this was called to the attention of the Circuit Court, the same should have been vacated and set aside.
We are of the opinion that as the complainant had applied to the court for leave to substitute another attorney and to strike Bull from the case as its attorney, this should have been granted. To this motion the attorney, Mr. Bull, filed a demurrer. Upon examination of the motion and Bull’s demurrer thereto, we hold that this should have been granted, upon terms. At the time the motion Was made to strike Bull from: the record as attorney for the complainant it was apparent that there were differ
The authorities universally recognize the right of a client to terminate the relationship between himself and liis attorney at his election, with or without cause, the existence or non-existence of valid cause for the discharge of the attorney, bearing only on his right to compensation. The right of a client to change his attorney at will is based on necessity in view of both of the delicate and confidential relation between them and of the evil engendered by friction and distrust. 2 R. C. L. 927.
In our opinion, the Circuit Court should have granted this motion, and by proper order reserved the right to make an inquiry as to the proper amount to be allowed Bull on a quanUmv mermt for the services he had rendered in the case for the complainant up to the time of receiving the deed to the mortgaged premises and the possession thereof. There was no necessity or reason for the entry of the decree of foreclosure, and it appears to us that the evidence upon which the fee was fixed does not disclose the true facts of the case or of the professional services and skill rendered by Bull in the case.
For the reasons stated, the case should be reversed with directions to the Circuit Court to set aside and vacate the decree pro confesses and final decree of foreclosure and for further appropriate proceedings.
Per Curiam. — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and ad