Irvin v. Strother

DENSON, J. — This record reveals the following-state of facts, briefly stated: The Legislature passed an act in 1903, establishing a dispensary in Alexander City, which prohibited any person from engaging in the saloon business in that town after the 1st day of January, 1904. W. P. Truitt, Joe Jackson, and John Irvin were saloon keepers in the town at the time the act was passed. Truitt and Jackson employed two attorneys to test the constitutionality of the act, making an express contract with them for a fee of |300, to be paid to them provided they succeeded in having the act declared invalid. It was understood and agreed that the proceeding to test the validity of the act should be carried on in the name of John Irvin, though he was not bound for the fee to the attorneys. “The whole [487] sale liquor men” furnished the $300, and the amount' was placed in the hands of E. P. Duncan, to he delivered to the attorneys if the courts declared the act invalid. In January, 1904, in pursuance of the agree; ment, Irvin applied for license to sell, liquor in Alexander City. On the day he appeared in Dadeville to present his application to the prohate judge for the license, one of the attorneys who had been employed to test the validity of the act ashed the plaintiff in this cause to come to his office at 1 o’clock with a view to joining him in Irvin’s case. Plaintiff went to the attorney’s office, and according to plaintiff’s testimony the attorney informed him that Irvin had filed his application with the probate judge for license to retail liquors in Alexander City, for the purpose of testing the dispensary law; that the application was sent for hearing at 2 o’clock; and that, if the license was refused, the purpose was to commence mandamus proceedings for the purpose of testing- the law. He further ■said to plaintiff, “If we can win the suit we can get a fee of $500,” and plaintiff told the attorney he would .join him in the case on those terms. Soon afterwards Irvin went into the office where plaintiff and the other attorney were, and the attorney stated to Irvin that plaintiff had agreed to join him (the attorney) in the case; and Irvin said that he was glad of it, that he was glad to have plaintiff in the suit. The proof shows that from that time on plaintiff went forward with the litigation, conducting same with no assistance from others, to a successful termination. The plaintiff testified that he never had any agreement with Duncan about a fee in the case, that Duncan did not agree to pay him any fee, but that he had been informed that “Duncan was to do the paying in the case.” He further testified that he never had any agree [488] ment with. Irvin about the amount of the fee in the case, nor any agreement with him as to plaintiff’s employment in the case, but that Irvin conferred with him about the case, all along during its progress, and would, Avhen in. Dadeville, come to his office for that purpose, and that Irvin knew plaintiff was representing, him in the case. One of the attorneys engaged by Truitt and Jackson testified that he employed plaintiff in the case; that Irvin had “nothing to do with employing the lawyers, nor with paying any part of their fee;” that he (witness) made the trade with plaintiff to come into the case, and employed him to “come in and assist him and his associate,” and that Irvin was not present when he engaged plaintiff; that he afterwardstold Irvin that, should he come to Dadeville and not find witness at home, he could call on plaintiff, who would advise him. He further testified that the money had been paid over to him by Duncan, and that of it he had $100 that belonged to “somebody.” Irvin testified that he had nothing to do with employing the attorneys in the case; that witness was informed by one of the attorneys that he had employed the plaintiff, and was told by that attorney that he could consult with plaintiff, should he go to Dadeville and not find him (said attorney) there; and that witness did so upon one occasion. The action is in assumpsit, upon the common counts,, by the plaintiff (appellee here) against E. P. Duncan and John Irvin, to recover for services as an attorney claimed to have been rendered at the request of the defendants. There were verdict and judgment in favor of the defendant Duncan, and also in favor of the plaintiff against the defendant Irvin; the court having given the general charge with hypothesis, at the request of plaintiff, in writing, against Irvin. From the [489] judgment, Irvin appealed, and here assigns for error the giving of the charge against him. It is a settled principle of law “that an attorney’s claim for professional services against persons sui juris must rest upon a contract of employment, express or implied, made with the person sought to be charged or his authorized agent.” — 4 Cyc. 984; 3 Am. & Eng. Ency. Law, 435; Humes v. Decatur Land Co., 98 Ala. 461, 13 South. 368; Milligan & Son v. Ala. Fertilizer Co., 89 Ala. 322, 7 South. 650; Grimball v. Cruse, 70 Ala. 544; Tisdale v. Troy, 152 Ala. 566, 44 South. 601. There is no pretense in this case that Irvin made any express contract of employment with plaintiff, nor that he had authorized any one to do so' for him; nor does the evidence tend' to show that he knew what was said between plaintiff and the attorney who invited him to come into the case. But we presume the theory of the plaintiff (he has no brief) to be that he was entitled to recover upon the principle that the law will imply a promise to pay a fair and reasonable compensation for services, rendered to another, which are knowingly accepted.—McFarland v. Dawson, 125 Ala. 428, 29 South. 327. This is a correct principle, and would probably be-of easy application if the attorney who invited plain-' tiff into the case had been in the employment of the defendant; but, as we have seen, he was not. He was acting in the case under an express contract of employment with others. And in this state of the case it was not within the power of that attorney to raise up a privity between plaintiff and Irvin; nor do.we think it could be asserted, as a matter of law, that what occurred between the attorney and the plaintiff created such privity. But we find that the plaintiff testified (in addition to the evidence above recited) that, on the morning of [490] the day of his conversation with the attorney at the latter’s office, Irvin spoke to plaintiff, and asked him if he would be in his office during the day, and that, upon his replying in the affirmative, Irvin. said, “I might want to see you during the day.” This — taken in connection with Irvin’s remark, when informed that plaintiff had agreed to join the attorney in the case, and with the testimony of plaintiff to the effect that Irvin knew plaintiff was representing Mm — was sufficient, in our opinion, to make it a question for the jury, under proper instructions by the court, as to whether the plaintiff was looking to Irvin,' and to Irvin alone, for compensation, and whether Irvin understood that he was so doing; and if the jury should find these propositions against the defendant then the plaintiff might recover.—Humes v. Decatur, etc., Co., 98 Ala. 461, 13 South. 368; 3 Am. & Eng. Ency. Law, 441. The views above expressed show that the circuit court erred in giving the charge for the plaintiff against Irvin, but committed no eiTor in refusing the charge requested by Irvin. Reversed and remanded. \ • Dowdell, C. J., and Simpson and Mayfield, JJ., concur.