Flagler v. Spellman

HAND, Circuit Judge (after stating the facts as above). The ease seems to us in narrow compass, and most of the questions argued at the bar we do not find it necessary to discuss. The first question is of the equity of the bill, which can Ke, if at aU, only as a biK quia timet. Plainly the plaintiff may not have a decree establishing in this suit her defense at law to an action for services rendered xmder the contract. At common law there could indeed be no bin quia timet except for land or incorporeal hereditaments, but section 57 of the Judicial Code (Comp. St. § 1039) extends the jurisdiction of the District Court in such eases to include interests in personalty. Jellenik v. Huron Copper Co., 177 U. S. 1, 20 S. Ct. 559, 44 L. Ed. 647. The plaintiff may therefore secure a decree upon a proper showing to clear her title to any legacies under her husband’s wiU or to her distributive share in his personal estate, but she may get nothing more. To dispose of so much of the bill as we have indicated, it is not necessary to pass upon the validity of the contract of September 16, 1922. We have only to decide as to its effect upon the plaintiff’s interests, and this depends upon the law of New York where the testator was domiciled, and where at least his personal estate had its situs. Under the law of that state a eKent is free at all times to revoke a retainer and to dismiss his attorney (“discharge” him in the language of the New York cases). Andrewes v. Haas, 214 N. Y. 255, 108 N. E. 423, 3 A. L. R. 458; Martin v. Camp, 219 N. Y. 170, 114 N. E. 46, L. R. A. 1917F, 402; In re City of New York, 219 N. Y. 192, 114 N. E. 49. That right does not, it is true, apply to contracts to serve as a general legal Sdviser for a specified term. Greenberg v. Remick, 230 N. Y. 70, 129 N. E. 211. But such is not the ease at bar. Our decision in Spellman v. Bankers’ Trust Co. (C. C. A.) 6 F.(2d) 799, is directly in point in this aspect of the case. Performance, which in this ease involved some recovery through the defendant’s efforts, was a condition precedent upon the plaintiff’s promise to pay the defendant one-half of what she received. The Ken was subject to the same condition as the promise. Indeed, the written contract does not in express terms give any Ken at aU, arid the oral agreement set up in the counterclaim is for a Ken only for one-half of the amount recovered. After his dismissal the defendant was of course unable to recover, anything, and both the promise and the Ken could never matiiré. AU this foUows from the unconditional right of the eKent at any time to dismiss the attorney, an inevitable incident in the relation and in the attorney’s professional status. It is quite true that the law so laid down has been applied only in cases of attorneys admitted to practice in the state, but the considerations which dictate it are equaKy appKeable to attorneys from other states who come within the state upon an occasional retainer. If the state permits so much, which we do not mean to question, it is upon the same impKeit terms as it imposes for the protection of its citizens and the proper discipline of its own officers. Hence it follows that, regardless of the validity of either contract, the defendant has no Ken upon the plaintiff’s legacies or distributive share. She is entitled on the admitted facts to such a declaration, and to an injunction which shaU protect her from its future assertion, but she is entitled to no more. [294] As to the counterclaim, we need only say that, in so far as it prays specific performance of the agreements to convey, it must fail for the reasons just given. So far as it asks judgment on a quantum meruit for services rendered, it is upon a cause of action at law, and as such it is not a proper counterclaim under the equity rules. American Mills Co. v. American Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306. The decree is reversed, and the cause remanded, with instructions, as regards the plaintiff’s bill, to declare that the defendant has no lien upon, or interest in, any of the legacies bequeathed to the plaintiff in the will of .her husband, or upon or in her distributive share of his personal estate, arising under the statutes of New York, to enjoin the future assertion of any such lien or interest, and to dismiss the bill in other respects. As regards the counterclaim, to dismiss it upon the mer-its, so far as it prays specific performance of the. written agreement of September 16, 1922, or the oral agreement of October, 1922, and in other respects to dismiss it without prejudice. There will be no costs in either cóurt.