Ellwood v. Wilson

Dillon, J. Certain instructions given and refused are-assigned as error. i. attounky: contract with clients. I. The plaintiffs asked, but the court refused to charge, “ that, if an appeal was taken by the railroad company . and plaintiffs had entered' upon the performance of tne contract on their part, the deiendant (Wilson) had no right to settle the suit without plaintiffs’ consent, and, if he did so, he would still be liable to the plaintiffs for the amount specified in the contract J It is our opinion that this ruling is correct. The contract was not' intended to prevent the defendant from' [527] settling liis cause. Tbe law encourages the amicable adjustment of disputes; and a construction of a contract which would operate to prevent the client from settling will not be favored. The instruction was objectionable in asking the court to charge, that the defendant, if lie settled his cause, would, if plaintiffs had merely entered upon their duties under the contract, be liable to pay them the full amount specified in the contract. 2. New trial: issues. ' II. The court, at plaintiffs’ instance, instructed the jury, “that, if the plaintiffs, after an appeal taken, rendered any service in the preparation of said' cause for argument in the Supreme Court before they kneiv of the settlement, they are entitled to recover the value of such labor and services, as shown by the evidence.” To this the plaintiffs do not object; and this instruction seems, to us to be just. This view does not prevent defendant from settling the cause, but obliges him to pay for any services rendered by the attorneys in good faith after notice of appeal and before notice of settlement. But the appellants make this point, viz.: That the jury disobeyed this instruction and others of a similar character. They claim that they produced undisputed evidence that they rendered some services after appeal taken and before they had knowledge of the settlement. And the appellants insist that, because the jury disregarded the law as charged, the court should have sustained their motion for a new trial. The bill of exception shows that we have only the substance of the testimony. The State v. Lyon, 10 Iowa, 340; State v. Hockenberry, 11 Id., 269, 270. If it be assumed that we have before us all of the testimony, we should strongly incline to hold (knowing, as we do, the high character, personal and professional, of the witness by whom the evidence in question was given), that professional services were rendered in good faith, to some [528] extent, after tbe appeal and before notice of settlement. But there were some circumstances elicited on cross-examination and shown by other testimony, which, if credited by the jury, would make the services, and especially the, value thereof, questions which fall peculiarly within the province of the jury, and in relation to which it could not fairly be claimed that the evidence was undisputed. Besides, under the pleadings (see statement and last division of this opinion), evidence of a right to recover on the quantum meruit was incompetent, was objected to by the defendant but admitted by the court. Under these circumstances we feel less disposed than we would otherwise be to reverse the judgment because the verdict was against the weight of the evidence, on an issue not made by the pleadings and in respect to which the evidence was improperly received and received against the defendant’s objection. s. aiwhajv: iffirmance after payment. III. The court charged the jury that if plaintiffs, on their own motion, after knowledge that the cause was set-tied (leaving the question of their knowledge to be decided by the jury as one of tact), procured a transcript to be filed in the Supreme Court and a judgment of affirmance rendered, this would not entitle them to recover for services rendered “ after they knew the cause had been settled and the judgment satisfied.” It requires no argument to show that this ruling was right. It is fruitless to affirm a judgment that is paid. If an attorney should knowingly do' this it would be unjust to hold that he could make his client pay him for it. Even if affirmed upon a partial record it would be set aside on producing a transcript which showed the dismissal of the appeal and entry of satisfaction. IY. If there was any error in allowing the deputy clerk to testify and point out what portions of the record in the [529] case of Wilson v. The Railroad Company lie had transcribed at the request of the plaintiffs’ agent, it was not such a one as would justify a reversal. The purpose for which this evidence was admitted was clearly established by other testimony to which there was no objection. The fact to which the evidence in question was directed was scarcely a disputed one in the case. Y. The present petition is wholly based upon the written contract, alleging full performance, and asking full compensation at the contract price. It contains but one count, and this was a special one on the contract. It might be a question, whether this would bar a subsequent action by the attorneys upon a quantum meruit. Corwin v. Wallace, 17 Iowa, 371. See S. C. at prior term not reported; Eyser v. Weissgerber, 2 Iowa, 167; Formholz v. Taylor, 13 Iowa, 500. Upon the legal points reviewed, we discover no error sufficient to justify a reversal of the judgment. But, in ordering it to be affirmed, we deem it right, in view of the state of the pleadings and course of the trial, to reserve to the plaintiffs the right to sue for the value of their services as upon a quantum meruit, without being estopped or barred by the present action and judgment. Affirmed.