Bishop v. Vaughan

ALLEN, J. — Plaintiffs-, a firm of attorneys at law in the city of St. Louis, were employed by the defendant in 1904 to prosecute a claim of the latter against a construction company for grading done by the defendant' in certain railroad construction work. By the contract of employment, defendant agreed to pay plaintiffs $100 as a retainer, and as additional compensation ten per cent of whatever might be realized on said claim. Plaintiffs were paid the said retaining fee, and proceeded to prosecute the claim. During the prosecution thereof „it became necessary to take the deposition of a witness who had in the meantime removed from this State and resided at San Francisco, California. It appears that the defendant urged that one of the plaintiffs be present in person at the taHng of such deposition, and that an agreement was then entered into between plaintiffs and the defendant, whereby defendant agreed to pay plaintiffs five per cent of the amount which might be realized upon the claim, in addition to the ten per cent thereof originally agreed to be paid plaintiffs, and to pay the expense incident thereto, if one of plaintiffs would personally attend the taking of said deposition. And pursuant to the terms of such agreement, one of the [482] plaintiffs attended the taking of the deposition, which took him from his office for a period of about ten days. This action is in quantum meruit to recover the reasonable value of all of plaintiffs’ services rendered in the premises, including the attendance at the taking of the deposition; the expense incident to the latter having been paid by defendant. The cause was referred to a referee, who found that plaintiffs were entitled to five per cent of the amount recovered upon the claim, in addition to the ten per cent originally agreed to be paid them, and recommended judgment in favor of plaintiffs for fifteen per cent of the said amount recovered. The trial court entered judgment in accordance with the findings and recommendation of the referee, and the- defendant appealed. The question in dispute pertains solely to plaintiff’s right to recover the additional five per cent for services rendered in the taking of the deposition at San Francisco. The referee found that the extra time and labor involved therein was not contemplated by either party at the time of the making of the original contract of employment, and was not included within its terms; and that defendant not only agreed to pay the said additional compensation therefor, but insisted that one of the plaintiffs personally attend the taking of the deposition. And on behalf of defendant it was conceded, in argument ore tenus, that respondents acted in the utmost good faith throughout the entire transaction, and that the subsequent agreement was made at appellant’s solicitation. Appellant’s contention, however, is that, regardless of all this, the agreement for extra compensation is void; that the making of such a contract between an attorney and his client, during the progress of litigation, for extra compensation for services rendered with respect to the matter in suit, is against public policy, and such contract necessarily void. And in support of this authorities [483] are cited, which will doubtless be found in the brief of appellant accompanying the reported opinion herein. But we cannot agree with counsel in this contention. While it is true that the contract of an attorney to render professional services for a fixed amount covers all services which are ordinarily or necessarily incident to the proper performance of the duties so undertaken by him, and that for such services he can recover no extra compensation (2 Thornton, Attorneys at Law, Sec. 440), the mere fact that an attorney at law performs services under a contract fixing the amount of compensation to be received by him does not preclude him from recovering extra compensation for services rendered, with the express or implied assent of his client, which were not contemplated by the contract of employment. [See 2 Thornton, Attorneys at Law, Sec. 441; 4 Cyc. 988, 989; Barcus v. Sherwood, 136 Fed. Rep. 184; Singer, Nimick & Co. v. Steel, 125 Ills. 426; Clarke v. Faver, 40 S. W. 1009; Allen v. Baker, 60 N. Y. Supp. 472; Isham v. Parker, 3 Washington 755.] Upon the undisputed facts in evidence, we think that plaintiffs ’ right to recover the additional compensation which defendant contracted to'pay them is quite clear. The mere existence of the original contract of employment and of the relation of attorney and client thereby created did not render the. parties incapable of contracting with each other with respect to services not contemplated by the former contract. It would be a strange doctrine indeed that would deny an attorney a recovery for additional services rendered under such circumstances, and permit his client, who had solicited the rendition thereof and solemnly agreed to pay therefor, to breach his said contract with entire impunity after having received the benefit of the services rendered. The judgment should be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.