Jones v. Brantley

Ethridge, J., delivered the opinion of the court. Appellant sued the appellee for professional services as an attorney for the-sum of five hundred dollars, alleging that the appellee was engaged in a mercantile business in a partnership, and that he desired the professional services of plaintiff in re-arranging or adjusting the partnership business, and that the value of the stock, etc., involved in the mercantile business amounted to thirty thousand dollars, and that the services so rendered were reasonably worth five hundred dollars. The defendant filed the general issue and a special plea alleging in the special plea that the contract and legal services were entered into and performed on Sunday, and that the said services were in violation of the laws of the state of Mississippi and would not support an action. He also gave notice under the general issue to the same effect and alleged that the employment was [730] gross, entire, and not divisible, and in such notice alleged that thereafter further services in connection with said matter were rendered by the said plaintiff on Sunday, the 23rd day of June, 1918, and on secular days thereafter, to which said plea and notice under the general issue the plaintiff in his replication said that the said contract was not entered into on Sunday as alleged. At the conclusion of the evidence the court gave a peremptory instruction for the defendant, and judgment was entered thereon for the defendant, from which judgment this appeal is prosecuted. There is a conflict in the evidence between the plaintiff and the defendant as to whether the contract was entered into on Sunday, but the plaintiff admits that he did some of the work and had certain consultations in reference thereto on Sunady. The testimony of plaintiff with reference to employment in part is as follows: “Some time along the middle of June, 1918, last year, one day along about Thursday or Friday of the week, Mr. T. L. Gilmer and myself were standing on the corner talking by Parker & Parker’s store. Mr. Brantley walked up and spoke to us and stood there and talked a few minutes about-different things, and said to me, ‘I want to see you and talk to you a little.’ I said, ‘All right.’ He said, ‘Clint Abrams and two or three other traveling men know you pretty well and said you were a good lawyer, and I have some business I want you to attend to.’ I said, ‘All right.’ ” He further testified that Brantley asked him would he be in his office on Sunday; that he usually attended to such things on Sunday, and that he replied that he would be if Brantley wanted to see him; that he did business and did some writing in reference to the said business; that it was necessary for them to see the other partner in reference to the new contract; and that Brantley requested the plaintiff not to leave town, as he granted him to sée his partner and do the talking when [731] his partner came to toivn. Plaintiff testified further that he waited some ten days for Brantley’s partner to come because of Brantley’s request, and that he neglected to make certain trips and to attend to certain other business because of a request of Mr. Brantley that he would not leave town. It further appears that the plaintiff drew the contract of partnership between Brantley and his partner, or rather closed their business by a contract, that there was no agreement about the amount of the fee, but that after the business was concluded he sent his statement of his fee to the defendant, to which the defendant failed to reply, and he subsequently sent other statements and finally wrote Mr. Brantley: That if the fee was not all right he would like to know about it. “I am due the courtsey of some attention in the matter of at least an explanation of why the delay of payment. ’ ’ To this the defendant replied: “I am in receipt of your bill for two hundred and fifty dollars, also note what you say and fully intended to see you and talk with you about this bill, but owing to illness and being very much ■ overworked have not been able to get to this. However, I want to say to you I think your charges are entirely too much. I would be glad to pay you what is right as soon as we can get this matter straightened out.” The plaintiff’s testimony and that of other lawyers shows that the services rendered were reasonably worth five hundred dollars, but a peremptory instruction was given for the defendant on the theory that the services were rendered on Sunday in violation of section 1366, Code of 1906 (section 1102, Hemingway’s Code), which reads as follows: “1366. Sabbath; Violations of Generally. — If any person, on the first day of the week, commonly called Sunday, shall himself labor at his own or any other trade, calling, or business, or shall employ his apprentice or ser [732] vant in labor or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall, on conviction, be fined not more than twenty dollars for every offense, deeming every apprentice or servant so employed as constituting a distinct offense; but nothing in this section shall apply to labor on railroads or steamboats, telegraph or telephone lines, street railways or in the business of a livery stable, meat market or ice house.” The plaintiff’s testimony as we view it shows the retainer contract between the plaintiff and his client was miade on a secular day, and his testimony shows further that he stayed in town for ten days at the request of defendant, neglecting to attend to other matters, waiting to close up the business for the defendant. It shows that some of the services were rendered on Sunday but the contract is not shown to have been made on Sunday so far as the plaintiff’s testimony is concerned. The plaintiff was entitled to recover a reasonable fee as a retainer, and a reasonable amount for his time in waiting in Belzoni at the request of the defendant, if his testimony as to these facts is believed by the jury. It is our opinion that the services rendered on Sunday as shown in this record were not a work of necessity or charity in the meaning of the statute. There are somie services that an attorney may lawfully perform on Sunday, as the law expressly authorizes certain suits and other legal matters to be done on Sunday. We do not think the contract an indivisible one. There was no contract for the gross amount, but plaintiff was depending upon the value of the retainer and particular services performed under the retainer, and for such time as he was detained in Belzoni on secular days. This view of the law, we think, is supported by Duggan v. Champlin, 75 Miss. 441, 23 So. 179 ; W. U. Tel. Co. [733] v. McLaurin, 70 Miss. 26, 13 So. 36; and Campbell v. Davis, 94 Miss. 164, 47 So. 546, 19 Ann. Cas. 239. The judgment of the court below is reversed, and the cause remanded for a new trial in accordance with this opinion. Reversed and remanded,. Sykes, J., dissents.