Clifton v. Clark

Teuly, I., delivered the opinion of the court. The bill of complaint in this case was filed by appellees, doing business under the name “Clark, Hood & Company,” against the executors of the estate of J. A. Blair, deceased, to recover the sum of $390.55 on a claim duly probated against said estate, being balance due on open account by Blair at the date of his death. The executors filed a cross bill claiming as an off-set fees due by complainants to Blair for legal services rendered. To this cross bill a demurrer was filed, which being *461 overruled, answer was made and depositions taken on both sides. On final hearing the chancellor dismissed the cross bill as not being sustained by proof, and granted a decree against the estate of Blair for the amount sued for. From that decree appellants, the executors of Blair, prosecuted this appeal. So far as material to the decision of the case the following are the undisputed facts disclosed by this record: J. A. Blair and W. D. Anderson composed a firm of lawyers located in Tupelo, and doing business as counsellors and attorneys at law and general practitioners throughout the state of Mississippi. Under the terms of their partnership contract J. A. Blair, the senior member of the firm, received three-fourths of all the fees, and W. D. Anderson, the other member, one-fourth. On September 6, 1895, Clark, Hood & Company, B. T. Clark & Co., and John Clark and B. T. Clark, as surviving partners of R. B. Clark & Co., entered into a written contract of employment with the legal firm of Blair & Anderson, whereby the said Blair & Anderson were employed to manage and conduct certain litigation then pending in which said Clark, Hood & Company, individually and as a firm, and the Clarks, also, as surviving partners, were interested. This litigation, to ai large extent, consisted of claims pending against the estate of R. C. Clark, deceased, and certain other matters, growing out of the administration of said estates. The consideration of the employment was that the said contracting parties agreed to pay Blair & Anderson a stated fee of $1,200, and a contingent fee of twelve and a half per cent upon all sums which the said attorneys might succeed in having allowed by the court against the estate of R. C. Clark. The pending litigation proceeded for a period of over three years, during more than two years of which time there was a continual taking of depositions in the case needed in the preparation of the same for a hearing before the auditors and the chancery court. During the year 1898 J. A. Blair, the senior member of the firm, being in feeble health, procured the services of W. H. Clifton, a practicing attorney, to *462 assist him in tbe preparation and trial of tbe Clark estate matters, and Clifton did render material assistance. After tbe case was prepared for trial, but before it came on for final bearing, J. A. Blair died, in November, 1898. After tbe death of Blair appellees, Clark, Ilood & Company, agreed that Clifton and Anderson, in conjunction with tbeir other attorneys, should continue in tbe prosecution of tbe pending litigation, provided it would not cost tbe said Clark, Hood & Company any more money for lawyer’s fees. This understanding was agreeable to '.both Clifton and Anderson, but in consideration of tbe fact that the death of Blair would entail more labor upon Anderson, tbe executors of Blair agreed that be, Anderson, should receive one-third of tbe contingent fee for which tbe Clarks and Hood bad contracted, instead of one-fourth bis interest as evidenced by tbe terms of tbe copartnership contract between Blair and Anderson. Subsequently, Clark, Hood & Company, on account of a disagreement with another of tbeir lawyers, fiy which he refused certain additional services which Clark, Hood & Company demanded of him, without additional compensation, refused to abide by tbe understanding with Clifton and Anderson, and finally attempted, so far as related to tbe representatives of Blair, to terminate the contract relations which had existed between them and the firm of Blair & Anderson. Thereafter W. H. Clifton still tendered his services and held himself in readiness to dicharge the duties of attorney and counsellor at law in and through said litigation, but his services were declined. On January 10th, after this attempt to abrogate the contract with Blair & Anderson, the Clarks and Hood made another contract with W. D. Anderson by which they employed him for the contingent fee of one-third of twelve and a half per cent of the amount which might be recovered, to proceed with the conducting of the litigation, for the managing of which they had contracted with Blair & Anderson, in the lifetime of Blair. The duties devolved upon Anderson by this new contract were iden *463 tical with those imposed upon him by the original contract made with Blair & Anderson, and the compensation was the same agreed on between Anderson and the executors of Blair. After the execution of this new contract with Anderson the litigation proceeded under the management of Anderson and Robins, the other lawyer of Clark, Hood & Company, who had also been, employed in the lifetime of Blair. The result of this new arrangement was that Clark, Hood & Company paid out for lawyer’s fees a considerbale amount less than they would have been required to pav had Blair lived, and the litigation been proceeded with under the existing contracts. After the final termination of the litigation, which resulted favorably to Clark, Hood ■& Company, the executors demanded Blair’s portion of the contingent fee, which they claimed was due his estate under the contract with Blair & Anderson. This relief, as before stated, was denied by the chancellor, and forms the basis of this appeal. It is urged by appellants that the chancellor misconceived the law applicable to the state of case made by this record, and that there are several different theories under which they are entitled to recover. It is said that the facts disclosed by the unsuppressed depositions show conclusively that during the lifetime of Blair it was agreed by all parties in interest that,, on account of Blair’s failing health, Clifton should be substituted in his place and stead, and that this was in effect the making of a new contract. Again it is said, that after Blair’s death this agreement was ratified by appellees and Anderson and Clifton, as the substitute of Blair, were continued in charge of said litigation, and thereby appellees became bound to the estate of Blair for the amount of the contingent fee agreed on. Finally it is urged that as "appellees continued Anderson in control of the business entrusted to his late firm, they are by their acts estopped from claiming that the contractual relations existing between themselves and Blair and Anderson were terminated by the death of Blair, and that this was the waiver of any rights *464 wbicb they may bave bad of dissolving tbe relation of attorney and client. Tbe first two contentions are controverted by tbe appellees, and there is a sharp conflict in the testimony, and if these were tbe-only questions involved in tbe case we would hesitate to disturb tbe finding of tbe chancellor upon tbe question of fact. It is manifest that, if Clifton was empowered by tbe clients to take Blair’s place after Blair’s death, or if they agreed to tbe substitution of Clifton in tbe place of Blair in bis lifetime, 'the question would be absolutely free of doubt, because then it would not be a question of the rights arising upon the dissolution of a partnership, but would be a plain, simple suit upon a contract made and entered into between parties still living. Tbe grave and important question involved in this litigation is presented by tbe remaining contention of appellants. Tbe case here presented is that of a contract made between clients and a firm of attorneys, general practitioners, who agree to perform certain legal services for certain compensation, partly absolute, in part contingent on ultimate success. TJpon death of one of tbe firm before a -final termination of tbe litigation tbe survivor completes tbe services and conducts tbe litigation to its final and successful conclusion. What is- tbe legal principle applicable to tbe case stated ? Tbe determination of this question necessitates tbe consideration of tbe relative rights and duties existing between attorney and client, and, as incidental to the main question, the duties and obligations imposed upon the survivor of tbe firm of attorneys. . Tbe general rule in reference to contracts for special, personal services is accurately and clearly stated in tbe case of Oox v. Martin0 15 Miss., p. 238, where it is said: “It is clear that wherever tbe continued existence of tbe particular person contracted with — the contract being executory — is essential to tbe completion of tbe contract by reason of bis peculiar skill or taste, death terminates tbe contract; as, for example, contracts of authors to write books, of attorneys to render professional *465 services, of physicians to cure particular diseases, of teachers to instruct pupils, and of masters to teach apprentices a trade or calling.” We adhere to this statement of the law in all cases to which it is applicable, but the case at bar is essentially different in its material facts from the case of Cox v. Martin. This is not a contract with any special attorney to render professional services; the continual existence of no particular person is essential to the completion of the contract; the successful consummation of the contract or the rendition of the services contracted for 'here does not depend upon the peculiar skill or tastes of any named individual; this is a joint contract with a firm of attorneys who are both general practitioners. We reiterate: Where a contract is made with an attorney, and it is specially contracted or understood, that he, alone, is to do the work, or to render the services, or that his skill exclusively is depended upon, and then the death of the attorney terminates the contract, whether he be alone or a member of a firm. And so where a client enters into a contract with a firm of attorneys for certain legal services to be rendered, for a fee stated, or upon an implied promise to pay the value of the services .rendered, and contracts, as here, for the services of both members, and one of that firm dies before the contract is finally completed, the client then has the option of abrogating the contract entirely by discharging the survivor, settling for services previously rendered, and employing other counsel to conclude his pending litigation. This we understand to be the full extent of the decision of this court in Dowd v. Troup, 57 Miss., 206. It is there held that the client permitting the surviving partner to proceed with the services for which the firm had been previously fully paid, could not be called on to pay any additional compensation to the individual member who had in fact performed the services. That case does not pass on the question, nor is it' presented for necessary decision here, as to what compensation, if any, the attorneys would be entitled to recover for services rendered previous to the dissolution should. the client exercise his right of choice, and terminate the employ- *466 meat, where the fee under the contract was entirely contingent upon success. We intimate no opinion on this point. But see as illustrative: Wright v. McCampbell, 75 Tex., 644; Landa v. Shook, 87 Tex., 609 ; Badger v. Celler, 41 Hun., 599 ; Smith v. Hill, 13 Ark., 174; Little v. Caldwell, 101 Cal., 553. The contract which shows the basis of the case at bar shows that the employment of Blair and Anderson was a joint employment of both members of the firm to render certain specified services and to manage and conduct certain matters then in litigation. This contract entitled the clients the the services of the firm, but was not a contract for the individual services of any named member of the firm. Either partner may attend to the business entrusted to a firm of attorneys, for the act of each is the act of all, and such a general contract does not give the client the right to demand that any particular member of the firm shall render the services or conduct the litigation. Eggleston v. Boardman, 37 Mich., 14; Page v. Welcapt, 81 Mass., 536. So that when one member of a firm of general practitioners, employed under such a contract dies, it becomes the duty of the surviving partner to hold himself in readiness to perform the services required of the firm under the contract, and to complete the unfinished business for the benefit of the client. This doctrine is impliedly recognized in the case of Dowd v. Troup, supra, where the surviving partner was denied extra compensation for services rendered after the death of his partner, and this conclusion can only be supported on the ground that the duty of completing the contract devolved on him as surviving partner. And it is there expressly stated that the surviving partner in rendering such services “was but discharging his own obligation as a member of the partnership.” ■ Inasmuch as a general employment of a firm of attorneys is a joint employment of the members, and it is the duty of each to discharge the joint obligation, one member of the firm cannot, upon dissolution of the partnership, whether by death or other *467 wise, refuse to carry to completion all executory contracts wbicb •were in force at tbe date of sucb dissolution. Walker v. Goodrich, 16 Ills., 341; Polsley v. Anderson, 7 W. Va., 202; Johnson v. Bright, 15 Ills., 464; Smith v. Hill, 13 Ark, 173. With tbe possible limitation tbat tbey might be entitled to some additional compensation from tbe estate of bis deceased partner for services rendered in winding up unfinished business, we see no reason why tbe general rule applicable to commercial partnerships should not apply to surviving partners of firms of attorneys. Having jointly undertaken the business entrusted to tbe partnership, each partner was under obligation to conduct it to the end; tbey owed this to tbe client and to each other. Tbe very basis of every partnership is that there is “an implied obligation on every partner to exercise due diligence and skill, and to devote his services and labors for the promotion of the common benefit of the concern.” Starr v. Case, Admr., 59 Ind., 491; Story, Part., secs. 182, 331; Denver v. Roane, Exer., 99 U. S., 355; Osment v. McElraih, 68 Cal., 466. As to the executory contracts only partially fulfilled the death of one partner does not absolve the other from the duty of rendering the services contracted for, and the active functions of the partnership are continued in existence until full performance by the surviving partner. This principle is applicable to partnerships between attorneys as to executory contracts when the individual personal services of the deceased partner was not especially contracted for. Sterne v. Goep, Admr., 20 Hun., 396; Bates’ Part, sec. 711; Denver v. Roane, supra. And in upholding the doctrine that this duty devolves on the surviving partner and is one of the risks and obligations assumed by him in the formation of the partnership, the supreme court of California in Little v. Caldwell, 101 Cal., 553, says: “This rule is particularly applicable in the settlement of the partnership accounts of attorneys at law, when the firm has been dissolved by the death of one member leaving contracts not fully performed, often constituting a large part of the assets of the *468 partnership, and which it is the duty of the survivor as far as possible to complete and preserve for the benefit of the firm. “While it is certainly true when a professional partnership between attorneys at law is dissolved by the death of one, the survivor is entitled to his own future earnings, and is not required to make an allowance in the settlement of the partnership accounts for what may be termed the good will of the partnership, or for the profits of such future business as may have been given to him by former clients of the firm, still, in regard to unfinished business intrusted to the firm, and which the client permits the surviving partner to complete, such contract of employment, although not capable of assignment, is still to be viewed by a court of equity as an asset of the partnership 3 and it is none the less an equitable asset, when, as in this case, the compensation for such services is entirely contingent upon the final success of the litigation in which the services are to he rendered.” In a class of cases beginning with McGill v. McGill, 2 Metcalf, 268, it is stated as the general rule that the death of one of the firm of attorneys terminates the contract, hut that the firm is entitled to compensaion for services rendered during he continuance of the engagement, and the reason for the conclusion is thus stated: “A contract with a lawyer, the performance of which requii’es the exercise of professional skill, is personal in its character. The service of the person employed is indispensable in the performance of the contract Lawyers are employed in professional business because the client has confidence in their integrity and in their qualifications.” We have no fault to find with the language here employed in all cases where applicable. A contract with a professional man for his individual services as pointed out in Cox v. Martin, supra, is always personal in the sense that it is terminable by death, and that performance of it cannot be demanded of his personal representatives, and it is also true that such a contract is terminated by death when the service of the person employed is indispensable in the perform- *469 anee of tbe contract. But, as herein already pointed out, tbe service of no special person is “indispensable in tbe performance of tbe contract” in a contract, sucb as tbe one under review, with a firm of general practitioners contracted with as a firm and not as individuals. The McGill case ignores absolutely tbe duty and obligation of tbe surviving partner to tbe client and to tbe estate of bis deceased partner. To our mind a very important and material consideration, and which must often vary tbe general rule so broadly stated in that case. If, after dissolution of tbe partnership by death or otherwise, tbe estate of tbe retiring partner be liable for the tortious or negligent act of bis late partner, in reference to partially fulfilled executory contracts as decided in the McGill case, Wilkinson v. Griswold, 12 Smed. & M., 669, and other cases, it would be illogical and inequitable to deny tbe representatives of tbe deceased partner an equitable participation in the compensation accruing by reason of the subsequent performance of sucb contracts by tbe surviving partner, and which tbe survivor was in duty bound to perform for tbe benefit of tbe firm. Brom tbe foregoing it necessarily follows that tbe surviving partner could not of his own motion procure release from this duty or service and refuse to carry out to its ultimate completion, tbe work which bad been intrusted to tbe firm before the death of bis partner. Nor could tbe client, with tbe intent of defeating the claim of the estate of tbe deceased partner, re-employ tbe survivor of tbe law firm and thus, by making a new contract, have tbe benefit, without making compensation therefor of the services of the deceased partner, and by sucb contract only procure services to which he was already entitled. : Making a concrete application of these general principles to tbe ease at bar, and waiving consideration of all disputed intentions, we find that after tbe death of Blair, appellees, Clark, Hood & Co., attempted to enter into a new contract with Anderson, tbe surviving partner, bv which Anderson was retained in *470 their employ and conducted to a satisfactory concltfsion the litigation which had been entrusted to the firm of Blair & Anderson. It is true that the employment of Blair & Anderson was a joint employment, and that by the death of one of the partners clients were deprived of his services, but this does not render them the less liable for the compensation agreed on, for the good and sufficient reason that one member of the firm did perform the services which the firm undertook to render, and, therefore, the contract was fulfilled. It is also true that the employment of Anderson was by another agreement made after the death of Blair, but equity and good conscience forbid the surviving party to abandon the business of the firm and contract to the detriment of the financial interest of his deceased partner’s estate, even when, as in the present case, such action is dictated by an honest but erroneous conception of the law. Nor can the client thus avail himself of the services rendered by the deceased attorney in his lifetime, and then refuse to pay the compensation agreed upon, after, by reason of services, the litigation has been brought to a successful termination. It may be that the surviving partner might have an equitable claim for a larger share of the compensation received for his services rendered after the death of his partner, but that question we are not called upon now to decide for the reason that the executors of Blair agreed with Anderson as to what his compensation should be, and that compensation, the record discloses, has already been received by Anderson, and it further appears that with eminent and commendable fairness and consideration, he expressly disclaims any interest in any fees which may be found due the estate of Blair by appellees. Clark, Hood & Company, did not take advantage of the option of finally terminating the contractual relations which existed between themselves and Blair & Anderson, but contented themselves with allowing the surviving partner to remain in control of and conduct the business to its close, and this was a recognition and a continuance of *471 their original contract, whereby they remain liable to the firm of Blair & Anderson for the full amount of the compensation originally agreed on, and as Anderson acknowledges receipt of his interest in that compensation, the remainder to be ascertained by calculations according to the terms of the contract, is now due the estate of Blair. It is urged by appellees, that viewing the services rendered by Blair & Anderson in the lifetime of Blair, as a part performance of a contract, that then the estate of- Blair is not now entitled to further compensation, because upon quantum meruit the firm had been fully paid for all sendees rendered prior to the death of Blair. This reasoning is without 'force in the present case. The doctrine of quantum meruit can find no lodgment here. There was no partial performance of the contract in the instant case on which a quantum meruit could be based or calculated; the contract was fully complied with by the rendition of the required services by the surviving partner. The firm was not discharged and settled with up to date of dissolution, but through one member thereof made full performance of the contract. This contract provided for both an absolute and contingent fee: the absolute fee had been paid, the contingent fee depended upon the succssful termination of the suit, all to be due if the suit was won, nothing to be due if the suit was lost. Therefore, the rights of Blair were not fixed until the termination of the litigation, and are now to be ascertained by a calculation upon the amount recovered as the fruits of the services rendered by Blair & Anderson, whether as a firm or individually. It follows, therefore, that the decree of the chancellor denying the relief prayed for hy the cross bill of appellants was erroneous. Appellants, as executors of the estate of J. A. Blair, deceased, are entitled to recover the amount of the contingent fee due under the terms of the contract with Blair & Anderson, after first deducting therefrom the 4 1-4 per cent received by W. B. Anderson since the death of J. A. Blair. All parties necessary *472 to a final determination and adjudication by a court of equity of the matters here involved are before the court. The decree of the chancery court is reversed and the cause remanded for further proceedings in accordance herewith. Reversed cmd remanded.