49 Colo. 203 | Colo. | 1910
delivered the opinion of the court:
Plaintiff Rhodes, who is an attorney at law, brought this action to recover from defendant Webster for professional services rendered. The first cause of action in the complaint, in substance, alleges that defendant employed plaintiff to bring an action
We think this judgment was right. There is no substantial controversy as to the material facts. The employment is admitted. That plaintiff brought the suit contemplated by the contract and stood ready to defend the anticipated suit of Harris are
If, however, there is any question about this, then, according to defendant’s own contention, plaintiff might recover upon a quantum meruit under the second cause of action. The proof, without dispute, sustains this count, for plaintiff performed the specified part of the professional service for défendant which was agreed upon, and stood ready to perform the remainder, which was rendered useless and
The matters set up in the counter-claim did not arise out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, neither are they connected with the subject of the action. It is doubtful if the cause of action attempted .to be set up therein is based upon a contract at all, although it pretends to be a claim for damages arising out of a breach of an attorney’s contract for professional services. It may be that defendant could sue either upon contract or in tort. Examination of the counter-claim leads to the conclusion, that he seeks a recovery on the ground of plaintiff’s negligence and has counted upon the tort. However that may he, whether the counter-claim pleads a breach of a contract or sets up plaintiff’s negligence, there was no testimony whatever that defendant suffered any damage, and the court was right in withdrawing the counter-claim from the jury.
As to the propriety of the practice pursued by the court in directing a verdict in plaintiff’s favor, upon his complaint, we observe it is the rule in this jurisdiction, that where, as here, there .is no substantial conflict in the evidence, and the court would' he obliged to set aside a different verdict if it was returned, it is its duty to direct a verdict. — Livesay, Admr., et al. v. First National Bank, 36 Colo. 526, 532; Murphy v. Cobb, 5 Colo. 281; Vote v. Karrick, 13 Col. App. 388, 23 Am. & Eng. Enc. of Law (2 cd.) p. 561; 6 Enc. P. & P. 678-9.
The judgment is right and must be affirmed.
Affirmed.
Mr. Justice Musser and Mr. Justice White concur. . ...