Foster v. Jack

The opinion of the Court was delivered by Gibson, C. J. —Though dissatisfied with the decision of Mooney v. Loyd on principle and for its consequences, I did not dissent. 'On principle, because I was unable to comprehend why a valuable consideration might not raise an implied promise as well as support an express one; and for its consequences, because I felt assured it would be found entirely incompatible with the business and necessities of both counsel and client here. As anticipated, it was received with almost universal disapprobation by the profession, not from the impulse of interest, but a conviction of its artificial structure and practical injustice. Its principle, if it can be said to have one, had its origin in the Roman law, when the practice of forensic oratory was so elevated as to be fancifully thought to be incapable of stooping to mercenary considerations without debasement. And the dignity of the robe, instead of any principle of policy, furnishes all the argument that can be brought to the support of it at the present day ; for it is hard to imagine a principle of policy that would forbid compensation for services in a profession which is now as purely a calling as any mechanical art. The English courts adopted it practically and professedly on the foundation of dignity. Theystu [338] diously restricted it to advocates, properly so called ; for actions for attorneys’ fees are of daily occurrence. But the decision in Mooney v. Loyd descended a step lower, and, abandoning the ground of dignity altogether, gave the rule a much wider sweep than it has in England. Though it might appear from the report that the cause of action was compensation for services in the trial of a cause, it is an undeniable truth that all preparatory services were included, though these are such as are rendered, in England, by the class called attorneys in the strictest sense. No discrimination was made in the expressions of the court, the rule of the decision being predicated of professional services generally. It is known to every member of the bar, how narrow is the compass of his duties as an advocate. His most constant and effective efforts are made in the preparatory stages; and his agency in directing the process of execution is an invaluable one. In fact, a substantial, if not a preponderating portion of professional business never finds its way to the ear of the judges at all; and there are many gentlemen in honourable and lucrative practice, who are seldom heard at the bar. They practise strictly as attorneys, and to apply the rule of the Roman law to them, would be a perversion of it. Yet Mooney v. Loyd would have done it; and the decision in Gray v. Brackenridge, by which it was overruled, seems to be as deeply seated in justice as it is in legal analogy. It was held in the latter that an attorney’s action may be maintained on' an implied assumpsit, and without regard to the quality of the services. The English rule was abolished by it without distinction between advocates and attorneys, as its analogue had been abolished by universal practice and without distinction between physicians and apothecaries. The subject was not susceptible of distinction; nor would there be the same propriety in it where the habits and circumstances of the client require indulgence, as there is in England where the barrister’s fee is handed to him with his brief. The questions upon this record, then, have respect to the quantum of the compensation, and the time it became demandable. The plaintiff declared for a quantum meruit, and to fix its extent recourse was had to evidence that a per centum is usually retained out of the amount collected : from which it might have been inferred that nothing is demandable where nothing has been recovered. On the principles of all other actions—and it is not easy to see why they should not be applied to the action of an attorney—it is certain that the fate of compensation is independent of the benefit received. A physician is to be paid his bill though the patient die : and in every transaction of life, where there has not been negligence, want of skill or a stipulation to the contrary, labour is to be rewarded in proportion to the pains taken in it, and not in proportion to the results produced by it. The employer takes his chance of that. Ought, then, the usage spoken of to be resorted to in order to control the natural principles of the contract 1 This is not the time nor [339] the place to discuss the legality of contingent fees; though it be clear that if the British statutes of champerty were in force here, such fees would be prohibited by them. But a contract of the sort is certainly not to be encouraged by implication from a questionable usage; nor established by less than a positive stipulation. The direciion of the judge on this part of the case, was neither definite nor precise. The entire declaration has not been put on our paper books, but it was distinctly said by him to be founded on an implied, and not a special contract; yet he instructed the jury that the promise laid not having been proved or pretended, the first count fell to the ground ; and thus, as it might appear to the apprehension of the jury, proof of an express promise was required to sustain an implied one. This, though erroneous, was certainly enough to dispose of the count; but in respect to the contract which, it had been contended, might be implied from performance, the judge remarked that the plain tiff had received the fees allowed to attorneys by law, and thus indicated, what perhaps was not meant, that he could be entitled to no more. The limitation of the legal fee, however, is to regulate the costs for counsel’s fees between the parties, and not the compensation to be allowed between them and their agents. The latter would require a legal fee to be taxed to the attorney of the unsuccessful party also; and not only would it be unlawful to receive more, but even an express contract for it, which was sanctioned in Mooney v. Loyd, would not support an action. The insignificance of the allowance, however, precludes a belief that it was intended to be in full; and with this construction the practice has always accorded. A recovery on the second count, in the ordinary form of a quantum meruit, was held to be barred by the statute of limitations, which was said to run from the performance of the services; and it must consequently have been supposed that the right of action accrued at that time. In Lyon v. M’Manus, 4 Binn. 167, an officer of the court—and an attorney is such—was precluded from having an action for fees in a cause depending. The decision was put upon an early practice of the province, handed down to the times of the commonwealth ; and it certainly had a solid foundation in the nature of the contract as modified by the practice, which has respect, not to successive jobs, but continuous employment. That decision directly affected no more than the right of immediate action for fees expressly prescribed by the law ; but the principle of it, subject to a particular modification presently to be noticed, is equally adapted to .an action for compensation implied by the law. If there be a difference, it is in favour of an application of it to the contract of the attorney, of which it is certainly not a condition that he be at liberty to vex his client with an action for each item of service the instant it is rendered. The modification to be noticed is, that his right to sue is not necessarily postponed till judgment is had; nor does it then necessarily arise, especially where money is to be collected, or [340] the judgment is to be enforced by further proceedings. It may be his duty to expedite an execution, and attend to the thousand and one matters usually connected with it. When, then, shall his action accrue 01; the statute run 1 Not before demand be made, or the professional relation be dissolved. Great length of time, operating by its natural and not its prescriptive force, might perhaps be left to a jury to found a presumption of such dissolution wilh an abandonment of the action ; but a mere suspension of proceedings from an apprehension that nothing might be got, would be a dangerous ground of inference ; for how desperate soever the affairs of a debtor may seem, it is always impossible to say how soon they may be retrieved. If the money were subsequently lost for want of pursuit, might not the attorney be liable for it ? The case of the debtor in the actions whose prosecution is the subject of this suit, is an instance of the fallaciousness of appearances. The company had nothing that was accessible to an execution ; yet satisfaction to the extent of forty-eight per cent has been obtained. The money might, have been paid in fact, as it was in law, on the judgments which had, by merger, become the debt; and can it be doubled that the attorney would have had authority to receive it 'i On the principle already indicated, the fact that the judgments did not actually accelerate the payment, is an immaterial one ; nor is the fact that the company required them to be vacated before the money was paid, entitled to more consideration. The imposition of terms was an assumption of power for which the managers might have been dealt with by mandamus ; and no arrangement which they were competent to make with their creditor, could impair the recourse of his attorney to the fund. It is unimportant, therefore, that payment was made directly to the client. In England such payment is tortious after notice, and may be restrained by the court. Even want of notice jeopards no more than the lien ; for the attorney’s recourse to the client remains the same. It was held in Ormerode v. Tate, 1 East 464, that the lien extends to money awarded the same as if it were recovered by judgment; and even that the attorney may compel it to be refunded if paid to the client after notice. I certainly do not pretend (hat there is a lien with us, or that this decision is an authority binding on us; yet I have no hesitation in adopting the principle of it for its good sense, so far as it indicates the recourse to be had to the client; according to which the plaintiff’s compensation ought to be what it would have been had the money been received by him. Judgment reversed, and a venire de novo awarded.