Lynn v. Agnew

Lambert, J.: Some time in the year 1912 one Barnes brought an ejectment action against the defendants Agnew. Issue was joined therein. The plaintiff in this action was the defendants’ attorney in that case. After issue it came to trial and resulted favorably to the defendants. The judgment thus obtained on appeal was affirmed in this court. (See Barnes v. Agnew, 172 App. Div. 933.) After the appeal was taken, the Agnews, by warranty deed, conveyed, with other lands, the premises involved in that action to the defendant McCann. She was not made a party to the ejectment action. After securing the judgment in the initial court and during the pendency of the appeal to the Appellate Division, the plaintiff in this [307] action brought suit against the Agnews to recover for services rendered therein. His recovery was resisted by the defendant Florence A. Agnew upon the ground that she had, at no time, employed him as her attorney. He recovered a judgment, however, and the same has been paid. After an affirmance of the judgment in the ejectment action, in this court, the plaintiff rendered a bill for his services in conducting the appeal against the Agnews and Mrs. McCann, the grantee. Upon refusal to pay, this action was brought to recover the same. The defendants put in issue the material allegation of the complaint. A jury was waived and the case tried before the court. The plaintiff obtained judgment against both defendants and they appeal. The rendition of 'service and its value are not in controversy. Employment of the plaintiff by the defendant McCann, and his discharge from employment by the defendant Agnew, were the only questions litigated. Except the initial employment of plaintiff by the Agnews, the evidence, relevant to the issues tried, consisted of letters passed between the parties, in substance, as follows: . . November 6, 1915, the plaintiff wrote the defendants that the printed case on appeal and notice of argument given for the November term had been served on him, and requested them to designate an attorney to look after the appeal and that he would turn over all the papers in the action upon payment of the value of his services; also that in default of so doing, he would deem it his duty to perform such services as their legal rights required, and in the latter event he would “look to you and each of you, and to the said property * * * for payment.” The defendant McCann made no reply. The defendant Agnew, six days thereafter, wrote the plaintiff repudiating his employment and any obligation of account thereof, and directed him to turn over all papers to one C. D. Kiehel and stipulate his substitution, and concluded, “ also please take notice that if you refuse to do so and continue to appear for me in this action, upon the appeal now pending in the Appellate Division, you do so voluntarily and without any authority or obligation on my part.” Four days later, and on November sixteenth, the plaintiff wrote her in reply that he would be glad to turn over the [308] papers and stipulate substitution upon payment of $100 for services since the service of the notice of appeal, and also .“if I continue in charge of the appeal, I will charge in addition, * * * $150 for preparing brief and "arguing the same,” besides printing, etc. A like letter was sent to her husband, which does not seem pertinent here. He conceded the employment and did not defend. Nothing further was done by the defendants and the plaintiff continued as attorney of record for the Agnews, prepared a brief, argued the case and secured a favorable determination in the Appellate Division. In this state of the proof the trial court made a finding that the services rendered in conducting the appeal were “ performed * * * for all of said defendants for their benefit and at their special instance and request.” The right of the plaintiff to recover against either defendant must rest in contract, express or implied. Section 474 of the Judiciary Law (Consol. Laws, chap. 30 [Laws of 1909, chap. 35], as amd. by Laws of 1912, chap. 229) reads: “ The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law.” In the case of the defendant McCann no express contract is established or claimed either on the trial or here. She was not a party to the ejectment action and no pretense is made that she gave any direction in respect to the case. The recovery had against her is sought to be upheld upon the theory of an implied promise. It is argued that the promise springs from benefits conferred upon her acquired title pending and, by the performance of services by the plaintiff, under a retainer from the Agnews. •No doubt she was benefited. The result of the litigation determined in her, in legal effect, the title to the lands involved. Besides, an adverse decision might have subjected her to the payment of taxable costs. She did not, however, seek or invite the services through which the benefits resulted. They came to her as a sequence from conduct and action beyond her direction or control. She held a warranty deed of the Agnews. The covenant of peaceable possession was an indemnity to her, against loss of possession. To avoid [309] liability the Agnews’ interest in the litigation continued to protect the title conveyed. In this situation there arose a right to determine where and how her best interests would be served. She could elect to join in defending the ejectment action which would involve liability for attorney’s services, or remain passive, and stand on her deed for indemnity. She chose the latter course. Under these circumstances, the law should not make the promise for her that she chose not to make. Apart from her legal rights, outlined, there is a failure of proof that her acquisition of title increased the labor of the plaintiff. So far as it appears in the record, he did nothing that he was not required to do under his retainer from the Agnews. This seems to be a forcible reason why he should not recover against her. He had a contract with the Agnews for all he did, if he is right in his contentions in seeking to recover against them. It is urged that defendant McCann’s consent to pay is presumptive because of her omission to reply to plaintiff’s notice that if he continued in the litigation he would look to her, the Agnews, “ and to the said property * * * for payment.” This, at most, is but a proposal that if he continued he would charge her for services for which he had been employed by the Agnews to perform. Nothing beyond was threatened or performed. He had no contract relation with her. She was a stranger to him and the litigation. She owed bim no duty to reply. The defendant Agnew’s appeal presents the question whether a party can effectively discharge an attorney at any stage of litigation without advance payment of services done. This query is amply answered by the case of Martin v. Camp (219 N. Y. 170) and cases there cited. If it ever was doubted, it is now settled that a client may discharge a lawyer, with or without reason, at any time, and the lawyer can recover only the value of his services rendered. It appears that some services were rendered by the plaintiff before his discharge by the notice of November sixteenth, for which he has not been paid. The judgment is reversed against the defendant Agnew, and a new trial granted, with costs to appellant to abide [310] the event. The judgment against the defendant McCann is reversed, with costs. All concurred, except Mebrell, J., who dissented in a memorandum.