Plаintiff requested defendant^ a lawyer, to represent her in a lawsuit against a firm she alleged injured her in an incident occurring on or about October 16, 1969. Defendant visitеd her in the hospital and discussed the case with her. Thereafter he filed a damage suit in her behalf in the Superior Court of Fulton County. On September 13,1972, this case was set down in the Fulton County Daily Report for trial on October 13, 1972. On October 13, 1972, the case was dismissed for want of prosecution, the defendant having failed to appear or to notify plaintiff of the call of the case.
Plaintiff filed this action in two counts. The first count sounded in tort and the second in contract. Both plaintiff and dеfendant moved for summary judgment as to both counts. After hearing, the judge ordered Count 1, sounding in tort, be dismissed and that plaintiffs motion for summary judgment was "granted as to liability based on Count 2 of the Complaint.” Defendant appeals, alleging the court erred in granting summary judgment to plaintiff as to Count 2 and denying defendant’s motion for summary judgment as to Cоunt 2.
Plaintiff filed a cross appeal alleging that the court erred in "granting cross appellee’s motion for summary judgment as to Count 1 of the complaint” and in denying plaintiffs motion for summary judgment as to Count 1. Held:
1. Defendant admitted in his answer that "he was engaged by the plaintiff to represent her as alleged . . . [and] he orally agreed to represent [her] upon a
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contingency basis,... but the amount of percentage to be received by defendant was never finally agreed upon.” Hоwever, in response to requests for admission by plaintiff, defendant "specifically denie[d] that he was retained by the plaintiff.” In an affidavit, he stated that there wаs "never an agreement as to what, if any, contingency the defendant would have been entitled to.” A party to a suit will not be allowed to disprove an admissiоn made in his pleadings without withdrawing it from the record.
Grigsby v. Fleming,
2. Defendant contends the purported parol contract was "nudum pactum,” because he was not paid a retainer and he and the plaintiff "never came to a meeting of the minds or agreement as to what if any contingency fee for such representation might be.” Plaintiff stated that defendant agreed to represent her on a contingency basis for "1/3 of what he recovered but sometimе after the suit had been filed, Mr. Venable told [her] ... he was only going to take 1/4 of what he recovered.” We find the oral exchange of promises to be sufficiеnt consideration. Code § 20-304;
Giant Peanut &c. Co. v. Long Mfg. Co.,
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An oral contract is legal and may be enforced by an action at law. Code § 20-106;
Norwood v. Robie,
Further, even if the contract might not have been enforceable, on the ground that it was without consideration and mutuality, partial performance of the contract — the services rеndered by defendant, supplied the lack of mutuality and rendered the contract enforceable.
Brown v. Floding,
would have had no difficulty in enforcing the contract.
Jenkins v. Stephens,
3. Judgment was entered in the instant case on October 27,1975. Notice of apрeal was filed with the clerk on November 24,1975, and counsel’s certificate of service on opposing counsel is dated the same day. Plaintiff filed his cross appeal on January 2,1976. Counsel for plaintiff filed an affidavit with his cross appeal stating he did not *218 receive a copy of the notice of appeal from defendant’s counsel and had no knowledge of this appeal until receipt of the Docketing Notice from this court on December 29,1975. Counsеl for defendant has filed a"counter-affidavit” reciting that his notice of appeal was "true and correct.”
Section 5 of the Appellate Practice Act, Code Ann. § 6-803 (Ga. L. 1965, pp. 18,21), provides that a cross appeal must be filed "within 15 days from service of the notice of appeal by appellаnt.” Plaintiffs cross appeal was not filed within the requisite 15 days from the date contained in defendant’s notice.
Although we have no motion to dismiss by defendant, in every matter coming to this court we are required to examine the record to make certain we possess jurisdiction.
Stephenson v. Futch,
4. As the cross appeal has been dismissed the only issue before this court is addressed to Count 2. We note that this count was couched ex contractu although based on the alleged negligence of the defendant attorney in failing to appear in court when plaintiffs case was called. The negligence arose from an alleged breach of duty arising from the contract. Without doubt it is fundamental in the legal prоfession that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of that case so that they may take whatever action may be necessary to
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protect the interests of their client.
Bragg v. Bragg,
As the questiоn of negligence was one for the jury, the grant of summary judgment for plaintiff on Count 2 was error.
Appeal dismissed as to Case No. 51927. Judgment reversed as to Case No. 51882.