Shaffner v. Killian

McAllister, P. J. It is indisputable that the court below confined Shaffnef’s allowance for legal services to commissions, according to the terms of the special agreement, as set up and testified to by Killian, the receiver. It may be true, also, as argued by appellee’s counsel, that the fact of Shaffner having taken the four respective claims in favor of the bank for collection under such special agreement as to compensation by way of commissions at the rate of ten per cent, on the large claims collected, and fifteen per cent, on the small ones, is supported by a preponderance of the testimony as presented by this record. But the testimony is undisputed that these claims were all put by the receiver into Shaffuer’s hands for collection at the same time, and were all embraced in that special agreement. The contract, assuming it to have been so made, was, therefore, an entire contract of employment, embracing all the claims placed in the attorney’s hands at that time. The testimony is also uncontradicted, that before the services for which the attorney was so employed were completed; the receiver discharged him from such employment without even the pretense of any just cause for so doing. It is an established rule of law, that where one of the contracting parties in such a case shall absolutely refuse to perform, or shall, by his own act, incapacitate himself from performing his part of the contract, such refusal or act will be regarded as equivalent to a consent on his part to a rescission of the contract, and the other contracting party may, if he choose, so treat it, rescind the contract, and if he have done anything under it, may immediately sue for compensation .on a quantum, meruit. Cutter v. Powell, 2 Smith’s Lead. Cas. 7th Am. Ed. pp. 43, 44, and cases there cited. That is precisely what Shaffner was authorized to do, and what he virtually did. He proved up his compensation on a quantum meruit, and it amounted to as much at least as the sum he had in his hands. That evidence was uncontradicted. But the court confined him to commissions at the rates above specified, so far as he had gone under said employment, wholly disregarding the wrongful discharge by Killian. This was error, for which the decretal order appealed from must be reversed. Keversed and remanded.