Union Surety & Guaranty Co. v. Tenney

Mr. Justice Carter delivered the opinion of the court: The first assignment of error insisted on is, that over the objection of the defendant the case was tried out of its regular order, before it would have been reached in due course, and without its having been placed on any trial calendar by the clerk of the superior court. The record shows that more than once the trial of the case had been postponed to a day certain on motion of the defendant, and that the trial was entered upon the day following the last day to which the trial had been postponed. We are of the opinion that the error or irregularity, if any there was, now complained of, was waived by the defendant. The defendant objected to the admission in evidence of certain letter-press copies of letters sent by appellees, or one of them, to the appellant or some of its officers, upon the ground that no proper foundation had been laid for their introduction as secondary evidence. Notice had been served on appellant to produce these letters, and its counsel admitted that he could not produce them. They were addressed to appellant, or some one of its officers, at its office in New York, and were out of the jurisdiction of the court. Appellees testified to the correctness of the copies, and that the originals were sent to the addressees by mail, in the usual course of business. There was no error in overruling the objection. Nor is there any force in the objection that the appellant’s vice-president had no authority to bind the company. The contract was executed on behalf of the company by its president and secretary and under its corporate seal, and the correspondence, on the whole, shows that the company was fully cognizant of the negotiations carried on by its officers,—in part by its vice-president,—and that it approved and directed them. His letters to appellees in respect to the matter were properly admitted in evidence. Appellant further insists that, as the relation of attorney and client existed between appellant and the appellees at the date of the contract mentioned, the burden of proof was upon appellees to show not only the contract and performance thereof, but that the same was in all respects reasonable and fair, and having offered no evidence whatever as to its reasonableness and fairness, there should have been no recovery. It is not apparent how the rules governing the relation of attorney and client are applicable to this case. All negotiations preceding the making of the contract were preliminary, and the final agreement was only concluded after it had been examined and approved by appellant’s legal adviser in New York. The contract merged all previous negotiations on that subject, and called for the payment, at once, of a retainer of $1000 to appellees. A retainer, as the word implies, is the act of the client in employing his attorney or counselor. The word is also used to dénote the fee which the client pays his attorney when he retains him to act for him, and thereby prevents him from acting for his adversary. Here was a special contract for a retaining fee of $1000, and a recovery could be had on such a contract without proving any services at all, for the retainer precedes the rendering of services. If appellant, after retaining appellees as counsel, chose not to avail itself any further of their services, that was its privilege, but could furnish no ground for a refusal to pay the stipulated retaining fee. The contract for a retainer was made for appellees’ benefit, and their bill and statement of account was received by appellant and acquiesced in without objection. It wrote appellees several letters promising to remit the $1000. It was clearly liable by the terms of the contract and the subsequent letters in evidence. There was no evidence of any kind offered showing that appellees had been paid or had released their claims. The evidence for appellees was all documentary, and there could be but one construction of it, and that was the construction that the court put upon it by the giving of the peremptory instruction to find for the plaintiffs. There was no evidence tending to support any defense, and we find no error in the giving of this instruction. The judgment must be affirmed. Judgment affirmed.