Opinion
November 12, 1963.
January 7, 1964.
Attorney and client — Contracts — Retainer fee contract — Breach by client — Damages — Diminution.
In this action of assumpsit in which it appeared that the plaintiff is an attorney and had been employed by the defendant for a period of one year for a salary or retainer of $8,500, under an agreement which contemplated that the plaintiff would represent other clients; and thereafter the defendant discharged the plaintiff without justifiable cause, it was Held, in the circumstances, that the plaintiff was entitled to recover the full amount of the unpaid balance of his annual retainer plus an additional sum for certain extra services.
Argued November 12, 1963. Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 122, Jan. T., 1963, from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1961, No. 2025, in case of Lynwood F. Blount v. Empire Mutual Insurance Company. Judgment affirmed.
Assumpsit. Before CHUDOFF, J.
Verdict entered for plaintiff, defendant's motion for new trial denied and judgment entered on the verdict. Defendant appealed.
Charles W. Gross, with him Gross Ryan, for appellant.
Paul N. Minkoff, with him Klovsky and Kuby, for appellee.
Plaintiff was employed by defendant as its attorney for a period of one year at a salary or retainer of $8,500. After several months defendant discharged plaintiff without justifiable cause. Plaintiff thereafter sued defendant for the unpaid balance of his salary and for the sum of $1,000 for extra services which were not included in his aforesaid retainer fee. Plaintiff recovered a verdict of $7,438 which represented both items. Defendant's motion for a new trial based on alleged trial errors was dismissed. From a judgment entered on the verdict, defendant has taken this appeal.
In this appeal, defendant contends that plaintiff is entitled to recover for breach of his retainer fee contract only on a quantum meruit basis, but does not contend that the damages recoverable should be mitigated and reduced by the fees which were earned by plaintiff during the balance of that year. Probably the reason no such contention was made is because of the difficulty, indeed the practical impossibility, of proof on this point. Since plaintiff's contract permitted him to represent clients other than the defendant it would not have been possible to prove with the "reasonable certainty" which the law requires ( Adams v. Speckman, 385 Pa. 308, 122 A.2d 685) what fees were earned in diminution of plaintiff's claim for breach of contract. A vain thing was not within the contemplation of the parties.
We have considered but find no merit in any of defendant's contentions.
Judgment affirmed.