Fleming v. Phinizy

Per Curiam. 1. Ordinarily, when one renders services of value to another, which the latter accepts, a promise is implied to pay the reasonable value thereof. 2. Where an attorney, by the authority of his client, a married woman, brings a suit in her behalf against her husband for divorce, and pending this suit negotiates a settlement with the defendant and the defendant’s attorneys, as a result of which the defendant settles upon the plaintiff a substantial sum as alimony, which the plaintiff accepts, the attorney, in the absence of any agreement as to fees, is entitled to be paid by his client such a sum as will represent the reasonable value of the services rendered. McDonald v. Napier, 14 Ga. 89, 104; Wells v. Haynes, 101 Ga. 841 (28 S. E. 968). 3. Where an attorney renders in behalf of his client services of the nature indicated above, without any agreement whatever as to the amount or terms of his compensation, he is not acting under a contract for a contingent fee in a divorce case or in an alimony case, and no question arises as to whether employment upon such a contingent basis would be illegal or contrary to public policy, or whether an attorney who has rendered services under a contract illegal or contrary to public policy could nevertheless recover on quantum meruit. {a) There is no law or public policy in this State which renders it illegal or improper for an attorney to represent a married woman in a suit for divorce and in negotiations to obtain money as alimony or in lieu of alimony, where the employment is without any agreement as to terms or amount of compensation, or as to what person shall be liable therefor. (5) In such a case the attorney is not without remedy against the person in whose behalf his services are rendered, merely because the suit is one for divorce and the ancillary matter in controversy concerns the payment of money as alimony, nor because the defendant in the suit might have been required by the court to pay to the plaintiff a sum for the fees of her attorney. The attorney is not obliged to depend for his fees upon a judgment against the opposite party therefor, but can look to his client to pay him the value of his services. (c) Under the facts alleged in this case, which is a suit by an attorney [793] against his former client for the reasonable value of services rendered by him of the nature and character above specified, it does not appear that the services were gratuitous and voluntary, for which his client should not pay. Decided October 2, 1926. 4. Where services undertaken as stated above progressed at length, and then some question arose between the attorney and his client as to what charge the attorney would make for his services, the statement by the attorney in a letter to his client that in his opinion' $250 would be reasonable for the services in procuring the divorce, and “that a rate not less than five per cent, nor more than ten per cent.” of the amount obtained as alimony “would be reasonable and customary,” could not operate to convert the original agreement into a contract to recover alimony on the basis of a contingent fee. 5. Statements by the client, in a letter replying to such letter from her attorney, to the effect that to reduce the amount expected as alimony “by the percentage” named by the attorney would leave “such a pitiful sum as to make it absurd,” and that she could pay the $250 named by the attorney as sufficient for his services in obtaining the divorce “if that is to cover all expenses attending the case,” and that she “could have no peace of mind if [she] was in debt for other expenses than this amount,” did not as a matter of law constitute a repudiation of liability for the reasonable value of services rendered, nor of the relation between herself and her attorney as previously existing'. The attorney could thereafter continue to perform services for his client in pursuance of the matters theretofore undertaken and recover the reasonable value thereof. Such communications between the attorney and his client with respect to the amount of compensation showed a mere discussion without affecting the rights of either, past, present, or future. 6. But even assuming that the letter of the client to the attorney amounted to a positive refusal to be liable for services upon any other terms except those stated by her, so .that the attorney could not expect to be paid upon any other basis for future services, the client could not by such arbitrary action terminate such liability as may already have accrued against her, but the attorney could recover upon quantum meruit for such services as he had rendered to that time. The rendition of further services, even though they may be assumed thereafter to have been gratuitous, would not constitute a waiver on the part of the attorney of any right to recover for services theretofore rendered. His subsequent conduct did not cause his client to alter her position nor afford any other ground of estoppel. 7. Applying the foregoing rulings, the petition set forth a cause of action for a recovery on quantum meruit for the value of the services rendered. The court erred in sustaining the general demurrer thereto. Judgment reversed. Jenkñ/ns, P. J., and Stephens and Bell, JJ., concur. William H. Fleming, pro se. Gohen & Gray, for defendant.