Opinion
39695.
DECIDED FEBRUARY 14, 1963. REHEARING DENIED FEBRUARY 28, 1963.
Complaint. Fulton Civil Court — Appellate Division.
S. S. Robinson, for plaintiff in error.
Benjamin B. Blackburn, III, contra.
1. Where there is a contingent fee arrangement between a client and his attorney and the client prevents the contingency from happening, the attorney is entitled to reasonable attorney's fees for his services rendered on behalf of his client.
2. Where special procedural rules for the Civil Court of Fulton County are created by statute which depart from those prescribed for the courts of general jurisdiction, the special statutory enactment for the civil court will prevail in that court.
3. An exception to the refusal to grant a nonsuit will not be considered, where there is also an exception to the overruling of a motion for a new trial, in which the defendant complains of a verdict for the plaintiff as being contrary to the evidence.
4-6. The trial court did not err in overruling the motion for new trial.
DECIDED FEBRUARY 14, 1963 — REHEARING DENIED FEBRUARY 28, 1963.
A. Ed Lane, Jr. filed an action in the Civil Court of Fulton County against Rev. H. I. Bearden alleging that he, the plaintiff, is a licensed attorney at law under the laws of the State of Georgia and is regularly engaged in the practice of his profession; that defendant is indebted to him in the principal amount of $289.22; that "Said debt became due on July 2, 1956 in the original amount of $333.33."; and that the plaintiff received a payment which reduced the amount due to less than $300.
The plaintiff thereafter amended his petition to allege in substance that the defendant had contracted with him to recover damages on behalf of the defendant for personal injuries which the defendant received in an automobile accident; that it was agreed that the plaintiff would be compensated for his services in the amount of one-third of whatever amount the defendant would receive as a result of the plaintiff's efforts; that the plaintiff performed certain named services and was able to obtain an offer of settlement in the amount of $1,000; that on July 2, 1956, the defendant, without just cause, released the plaintiff from his obligations under the contract and requested that the plaintiff submit to him a statement for services rendered under the contract, and that the plaintiff in accordance with this request calculated his fee as one-third of the sum of $1,000.
The matter was tried before a judge sitting without a jury, and after the trial the judge took the matter under advisement. While the case was being considered by the judge but before a judgment was rendered, the plaintiff tendered another amendment to his petition which was allowed by the court. In this amendment he alleged that the reasonable value of his services rendered on behalf of the defendant up to July 2, 1956, was $333.33. By demurrer the defendant attacked the petition as amended on several grounds and demurred specially to the amendment upon the ground that it sought to change the plaintiff's cause of action from one based upon contract to one based upon quantum meruit for the reasonable value of services rendered. The court overruled all grounds of the demurrer and rendered a judgment for the plaintiff. The defendant filed a motion for a new trial which was overruled. The overruling of the demurrer, the overruling of the defendant's motion for a nonsuit which was made at the conclusion of plaintiff's evidence, and the overruling of the motion for a new trial were assigned as error in the defendant's appeal to the Appellate Division of the Civil Court of Fulton County. The Appellate Division affirmed the rulings of the trial court. The defendant excepted.
1. An attorney at law cannot recover under a contingent fee contract unless the contingency expressed in the contract occurs. Sellers v. City of Summerville, 208 Ga. 361 ( 67 S.E.2d 137); Strickland v. Williams, 215 Ga. 175 ( 109 S.E.2d 761); Stephens v. Fulford, 153 Ga. 637 ( 112 S.E. 894); Byrd v. Clark, 170 Ga. 669 ( 153 S.E. 737). In absence of a contingent fee contract a client has a right to terminate the employment of an attorney at any time upon the payment of reasonable attorney's fees, and such termination is not considered a breach of the contract. White v. Aiken, 197 Ga. 29 ( 28 S.E.2d 263). Where there is a contingent fee arrangement between a client and his attorney and the client prevents the contingency from happening, the attorney is entitled to reasonable attorney's fees for his services that have been rendered on behalf of the client. Ambos v. Chastain, 75 Ga. App. 393 ( 43 S.E.2d 592); Horton v. Farmer, 57 Ga. App. 759 ( 196 S.E. 112); Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99); 7 CJS 1074, Attorney Client, § 188 (c). Accordingly, the plaintiff's petition as it was finally amended set forth a cause of action.
2. Conceding for the purpose of argument that the plaintiff's original petition was one predicated upon a specific contract and the plaintiff's last amendment constituted a new and distinct cause of action from the one originally pleaded, the petition is not subject to the grounds of the demurrer urged by the defendant because a specific procedural statute concerning the Civil Court of Fulton County authorizes such a procedure. Ga. L. 1933, pp. 290-298. This statute provides in part: "Where the amount involved is less than three hundred dollars, exclusive of interest, attorneys' fees, and costs, the trial judge shall at any time, in the furtherance of justice, upon such terms as may be just, permit any claim, suit, process, proceeding, pleading, or record to be amended, in form or in substance, or material supplemented matter to be set forth in an amended or supplemental oral claim or pleading. The judge at every stage of the proceedings must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties, and amendments changing the cause of action, or presenting a new cause of action, arising out of the same transaction or subject-matter, shall be allowed, providing, however, for time to the opposite party, where in the discretion of the court it is deemed necessary to meet the new matter claimed by the amendment." Where special procedural rules for the Civil Court of Fulton County are created by statute which depart from those prescribed for the courts of general jurisdiction, the special statutory enactment for the civil court will prevail. Washington Nat. Ins. Co. v. Edwards, 102 Ga. App. 381 ( 116 S.E.2d 514). Accordingly, the court did not err in overruling all grounds of the defendant's demurrer.
3. "Under repeated rulings of this court, an exception to the refusal to grant a nonsuit will not be considered, where there is also an exception to the overruling of a motion for a new trial, in which the defendant complains of a verdict for the plaintiff as contrary to the evidence." Taylor v. Johnson, 18 Ga. App. 161 (7) ( 89 S.E. 77). See Duncan v. Redd, 14 Ga. App. 306 ( 80 S.E. 726).
4. By two special grounds of his motion for new trial the defendant complains of the admission of certain evidence relating to the value of the plaintiff's services calculated on a quantum meruit basis. These grounds present no reversible error since the evidence was admissible under the allegations of the petition as it was finally amended.
5. The remaining special grounds of the motion for new trial are exceptions to rulings on the pleadings. These rulings cannot be made a special ground of a motion for a new trial. Guest v. Baldwin, 104 Ga. App. 809 ( 123 S.E.2d 194).
6. The evidence was sufficient to support the judgment. Therefore, the general grounds of the motion for a new trial are without merit.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.