Opinion
12681
June 13, 1929.
Before GRIMBALL, J., Greenville, February, 1928. Affirmed.
Action by P.A. Bonham and others against Mattie Goldsmith Farmer, executrix, and others. Judgment for plaintiffs, and defendants appeal.
On September 9, 1927, the Master's report was served, copy of which, omitting formal parts, is as follows:
"This is an action at law by the plaintiffs to recover attorney's fees amounting to $7,800. The complaint was served on the defendants on March 25, 1927, and summons attached to said complaint required the defendants to answer the complaint in due time. The defendant, Willie Blakie Farmer, is a minor, and answered by her guardian, ad litem, Mattie Goldsmith Farmer. The answers were served April 11, 1927, and by consent of the parties the case was referred to me by order of his Honor, Judge T.J. Mauldin, dated June 17, 1927.
"I have held numerous references, the first one being on August 4, 1927, and the testimony has been taken by a stenographer, which is certified to the Court with this report.
"On April 22, 1925, B.D. Goldsmith, a wealthy colored man, who was popularly known as Blake Goldsmith, died in the City of Greenville, leaving a will in which he devised the greater portion of his estate, appraised at approximately $92,000, to the defendants, Mattie Goldsmith Farmer, his sister, and Willie Blakie Farmer, daughter of Mattie Farmer, and therefore a niece of the testator. He willed his wife, Lydie Goldsmith, the sum of $500, and gave his only surviving brother the sum of $1,000. The balance of the estate was given to the defendants.
"Almost immediately after his death the wife, Lydie Goldsmith, launched a vigorous contest against the will, alleging that her husband was insane at the time of the execution of the will, and also upon the grounds of undue influence on the part of his sister, the defendant Mattie Goldsmith Farmer. The estate, of course, was a very valuable one, consisting of business property in the City of Greenville, appraised at $65,000, and other fine real estate and personal property.
"The defendant Mattie Goldsmith Farmer, executrix, employed the plaintiffs, Messrs. Bonham, Price Poag, to defend the contest against the will. The will contest was a hard-fought legal battle, in which the contestant, Lydie Goldsmith was represented by Messrs. Dean, Cothran Wyche and B.A. Morgan, Esq., attorneys of high standing and great ability at the Greenville bar. The final result of this litigation was a decree by the Probate Judge sustaining the will and upon appeal an order by the Circuit Judge sustaining the Probate Court.
"It clearly appears from the testimony that the plaintiffs were originally employed solely to defend the contest against the will. Later during the course of the litigation the contract was reduced to writing, and the complaint is based upon this written contract.
"The contract calls for the plaintiffs to represent the defendants in all matters affecting the settlement of the estate of Blake Goldsmith and `particularly in the matter of the contest of the will of Blake Goldsmith.'
"The fee provided in the contract is largely contingent. By the terms of the contract the attorneys were to receive one-fifth of the amount saved to the beneficiaries by reason of the will being sustained; `that is to say, the net difference between the amount the party of the second part would receive under the statute of distributions, and the amount the beneficiaries received under the will.'
"The attorney for the defendants offered many defenses, the principal ones being, first, that the action was premature; and, second, that the plaintiffs were not justified in abandoning the contract of employment.
"Upon several occasions the defendant's attorney, Mr. B.F. Martin, stated in open Court that his clients were not contesting the reasonableness of the fee of 20 per cent.; that, if the full services had been rendered, the fee of 20 per cent. was not unreasonable under the circumstances.
"There were other defenses offered which will be considered in the report.
"As to the principal defense that the action was premature. From the testimony it appears that there are several minor matters with reference to the estate which have not been concluded, such as the foreclosure of one or two mortgages, which have been started by plaintiffs. Plaintiffs admit that these minor matters are yet pending, but claim that the defendant Mattie Farmer made it impossible for them to continue as her representatives on account of her misconduct, clearly calculated to humiliate and degrade them. They contend that they were perfectly willing to complete all legal services to the estate, and could have done so in the near future, but that Mattie Farmer made it impossible for them to continue as her attorneys by her misconduct.
"Without reviewing the voluminous evidence upon this point, I find that the plaintiffs were entirely justified in terminating the relation of attorney and client. It clearly appears to my satisfaction that during the early stages of the relation, before the will was sustained, the defendant was highly pleased with the work of her attorneys. As Mr. Bonham expressed it: `During the earlier part of our services rendered to Mattie she was as appreciative a client as I have seen, courteous, respectful and seemed to value highly the services which we rendered.' Later she changed without any cause or excuse. She became insolent to her attorneys, and would contradict them in the `flattest way.'
"In making a settlement of Lydie Goldsmith's dower claim it became necessary to borrow $15,000, which loan was approved by the Court. Plaintiffs arranged to borrow this money through Messrs. Hodges Leatherwood. The defendant, Mattie Goldsmith Farmer, had appeared before me in the Court proceeding necessary to effect this loan, and testified that in her opinion the loan was to the best interest of the estate, herself, and her young daughter. Before the loan was completed, she changed her mind for some unknown reason, and was reluctant to sign the note and mortgage. After some discussion, she finally signed these papers in Mr. Leatherwood's office. The note provided for the payment of interest semiannually. When the time for the first payment of interest came around, Mattie refused to pay, claiming the paper and that interest was to be paid annually. Finally Hodges Leatherwood entered foreclosure proceedings against her. In a conversation with Mr. Leatherwood, she made the grossest charges against her attorneys, claiming that they had forged the paper on her and had `lied to her about the matter.'
"Any honorable attorney would be justified in terminating the relation of attorney and client under such circumstances. The charges were utterly false and without the slightest foundation, and, when later fully communicated to Messrs. Bonham, Price Poag, I find that they were entirely justified in discontinuing any personal services to this woman. The main thing for which they had been employed had long since been brought to a highly successful termination.
"The only testimony before me is that the services yet to be performed to wind up the estate could easily be procured from any attorney at a fee not in excess of $300. While I do not think the plaintiffs could be required as a matter of law to lose this under the circumstances of this case, yet they voluntarily agree in Court to allow a reduction of the fee by this amount, and to be on the safe side I will allow $500.
"I therefore find as a matter of fact that the action is not premature.
"The general rule in such matters is thus stated in 6 C.J., p. 674:
"` Withdrawal for Cause. Any attorney may, for lawful cause and on reasonable notice withdraw from a suit at any stage of the proceedings. What is a sufficient cause to justify an attorney in abandoning a case in which he has been retained has not been laid down by any general rule, and in the nature of things cannot be; it must depend upon the peculiar facts of each case. Any conduct on the part of the client, during the progress of the litigation, which tends to degrade or humiliate the attorney, lower the standard of professional ethics, or destroy the reciprocal confidence required between attorney and client furnishes sufficient cause for abandonment of the employment.'
"With reference to compensation upon withdrawal under such circumstances, the rule is laid down in the same volume at page 724:
"`Where the complete performance of an attorney's services has been rendered impossible, or otherwise prevented by the act of his client the attorney may, as a general rule, recover on a quantum meruit for the services actually rendered, or he may have an action for damages, and in some states he may recover, in an action upon the contract, the entire stipulated compensation, where he remains in readiness to render complete performance.'
"In this case only a small portion of the services remain to be performed, and the client has prevented this final completion of the work by her misconduct.
"The case of Genrow v. Flynn, 166 Mich., 564, 131 N.W., 1115, 35 L.R.A. (N.S.), page 960, Ann. Cas., 1912-D, 638, is one of the leading cases in the country upon this question:
"`An attorney who has received a sum of money to prosecute a suit to judgment may withdraw from the case without returning the money, if the client falsely charges him in a telegram with deceiving, lying, and neglecting him.'
"The Court said:
"`Certainly no reputable attorney could continue in a case after the receipt of such a telegram from a client. We think that the plaintiff by his own act practically made it impossible for defendants to perform their contract.'
"In the case at bar, I find that no self-respecting attorney could have continued as the attorney for the defendant Mattie Farmer under the circumstances.
"In his argument before me Mr. Martin admitted frankly that such charges as the defendant made to Mr. Leatherwood, if made, were sufficient to justify counsel to withdraw from the case. But he contended that Mr. Price knew of these charges and condoned them, thereby waiving his right to later abandon the case. This was based upon an absurd statement by the defendant that a day or two after she settled with Mr. Leatherwood she went to Mr. Price's office, and he admitted that he had made her sign a blank mortgage and note, and that he was ready to go forward with her work. Mr. Price said that she came to his office and stated that she realized she had acted foolishly in refusing to pay the interest and having thrown away several hundred dollars in fees, and asked him to go forward with her work; that later he learned that she had made these public charges against his firm, and knew then that they could not continue to represent her.
"In the first place, I know Mr. Price could not have admitted that he had her to sign a blank mortgage, for the reason that I know something of the careful methods of Messrs. Hodges Leatherwood, and I know that they would never have permitted a $15,000 loan to have been handled in that way. Knowing counsel as I do, I know he would never have proceeded with Mattie Farmer's business had he known that she had publicly charged his firm with having `lied and filled in a blank mortgage.'
"I therefore find that there is absolutely no evidence of waiver or condonation.
"Another position taken by Mr. Martin is that, even if there was just cause to abandon the contract as to Mattie Farmer, there was no such cause as to the case of the minor, Willie Blakie Farmer. This position is utterly untenable. It appears that the minor is a girl now sixteen years of age. Her case is absolutely tied up with that of her mother, who dominates the entire matter. The entire business was being handled by Mattie Farmer, and it would have been impossible to proceed with the minor's interests under the circumstances.
"Finally, defendants contend that it is impossible to get at the amount of the fee until all matters have been settled. Under the testimony, I find that all parties fully understood that the fee was to be settled according to the appraisal value of the estate. The appraisal had been made by three real estate experts of high standing, and all parties at the time the contract was made fully agreed and understood that the fee was to be calculated by the appraised value of the property left by Blake Goldsmith.
"From the testimony before me, I find that the plaintiffs are entitled to a fee upon the following calculation:
Appraised value of personalty ..................... $ 16,659.90 Appraised value of realty ......................... 75,280.00 ____________ Total appraised value .......................... $ 91,939.90 Amount Mattie Farmer would have received if the will had been set aside, one-fourth of $91,939.90 ..................................... 22,986.63 Amount paid by executrix to Lydie Goldsmith for dower ...................................... 15,000.00 Appraised value of Lydie Goldsmith mortgage allowed in dower settlement .................... 750.00 Bequest paid to Homer Goldsmith ................... 1,000.00 Paid state inheritance tax ........................ 1,700.00 Federal inheritance tax ........................... 262.00 Judgment against Blake Goldsmith .................. 559.00 _________ Total deductions ............................... $ 42,257.63 Appraised value of estate ......................... $ 91,939.90 Total deductions .................................. 42,257.63 ___________ Net amount received by beneficiaries .............. $ 49,682.27 One-fifth of $49,682.27 ........................... 9,936.42 Less $2,500 paid in cash .......................... $ 7,436.45 Less $500 allowed by plaintiffs in dower settlement ........................................ $ 6,936.45 Less $500 agreed by plaintiffs to be deducted to complete all necessary litigation .............. $ 6,436.45 "I do not think the parties had in mind at the time of the contract any other possible deductions. Defendants contend that Mattie Farmer should be allowed $15,000 for nursing the deceased in his last illness. This claim had never been mentioned until this case was instituted. It would be absurd to believe that the deceased wanted Mattie Farmer to charge for services when he was giving her and her daughter his entire estate. She also claims a deduction of $5,000 for fees as executrix. If the will had been set aside, the wife would have been appointed administratrix under the law, and she could not have collected anything. If she could charge this fee, it would be an amount saved to her by sustaining the will."I therefore recommend that the plaintiffs have judgment against the defendants in the sum of $6,436.45, and for the costs of this action. I certify all testimony, pleadings, and exhibits in the case."
The cause was argued before Judge Wm. H. Grimball, at Greenville, S.C. at the January, 1928, term of Court, and on February 28, 1928, the Court filed an order in the case, which, omitting formal parts, is as follows:
"This is an action by plaintiffs, practicing attorneys of Greenville, to recover for professional services rendered the defendants in connection with the estate of one B.D. Goldsmith. By his will Goldsmith, a wealthy negro, gave practically the whole of his estate to his sister and her daughter, the defendants. His wife, who was cut off with $500, contested the will on the ground of insanity and undue influence. The defendant, Mattie G. Farmer, who was the executrix, retained the services of the plaintiffs in behalf of herself and her daughter, and a contract was entered into whereby it was provided that the plaintiffs would defend the will and perform all the other legal services necessary in connection with the administration and settlement of the estate, receiving as compensation one-fifth of the amount saved to the beneficiaries by reason of the will being sustained, that is to say, one-fifth of the net difference between the amount Mattie G. Farmer and her daughter would receive under the statute of distribution and the amount they received under the will. In case the attorneys did not succeed in sustaining the will, they were to receive $2,000.
"The will contest resulted in the will being sustained, and plaintiffs' suit is on the contract for the agreed compensation, $10,800, less a credit of $3,000. The defendants denied that this amount was due, and in fact that any amount was due at this time, because plaintiffs had not completed the work and settled the estate, and because an accounting was necessary to determine the net value of the estate.
"By consent the case was referred to the Master under a general order of reference. He found that plaintiffs were entitled to judgment for $6,436.45, and the case is before me on exceptions to the report. My conclusions of the facts and the law applicable thereto lead me to the same result as was reached by the Master, and his report is confirmed.
"While the plaintiffs did the great bulk of the work they contracted to do, they did not complete the winding up of the estate. They would have completed the work but for the fact that the defendant, Mattie G. Farmer, by her abuse and misconduct, made it impossible for them, as self-respecting attorneys, to continue to represent her and her daughter any further. Under these circumstances, the plaintiffs were entitled to recover the full amount of compensation provided in the contract. However, they have only asked for, and the Master has allowed them, the contract price, less an amount reasonably sufficient to compensate another attorney for doing the uncompleted work. The defendants have no just ground of complaint at a recovery on that basis. Searson v. Sams, 142 S.C. 558, 141 S.E., 107; Warren v. Shealy, 83 S.C. 113, 65 S.E., 1; Genrow v. Flynn, 166 Mich., 564, 131 N.W., 1115, 35 L.R.A. (N.S.), 960, Ann. Cas., 1912-D, 638; 6 C.J., 674 and 724.
"It is contended that, after the misconduct of Mattie G. Farmer occurred, the plaintiffs went ahead and did certain work, and that this operated as a waiver of the right to abandon the employment. But such subsequent services were performed before the plaintiffs knew of their client's misconduct, so that there was no waiver.
"Defendants urge that the action is prematurely brought, because the compensation of the attorneys is based upon the net value of the estate, which cannot be determined until creditors are called in and the estate finally settled. This objection would come with better grace if defendants had made some attempt to settle the estate since the commencement of this suit in March, 1927. They have taken no steps whatever toward that end, and their failure to do so lends color to the plaintiffs' charge that such inaction is with design to delay indefinitely plaintiffs' recovery. But the contract did not contemplate the deduction of each and every debt in fixing the net value of the estate. At the time it was executed, plaintiffs made a calculation for defendants, which is in evidence, and which shows that the net value of the estate for the purpose of fixing the amount of the fee was to be determined on the basis of the appraisal and certain specified deductions, all of which have been allowed.
"It is also contended that the complaint fails to state a cause of action. The evidence abundantly shows a cause of action for the amount found by the Master, and, while the complaint appears to be sufficient, even if it is not, the defendants cannot profit thereby, as the complaint will be considered as amended, in the interest of justice, to conform to the proof.
"It is therefore ordered that the exceptions to the Master's report be and they are overruled, and that the plaintiffs have judgment against the defendants for the sum of $6,436.45 and costs."
Mr. B.F. Martin, for appellants, cites: As to recovery: 114 N.E., 46; L.R.A., 1917-F, 402, 404; 2 R.C.L., 957; 6 C.J., 673; 19 L.Ed., 992; 4 Cyc., 954; 205 N.Y., 402; 100 Pac., 677; 38 L.R.A. (N.S.), 390; 56 So., 427; 23 Am.Rep., 613; 43 So., 908; 3 R.C.L., 1048; 26 S.C. 327; 13 C.J., 725; 84 S.C. 73; 94 S.C. 406; 87 S.C. 251; 48 S.C. 306; 84 S.C. 194; 4 Cyc., 984. "Net": 104 S.C. 379.
Messrs. Nettles Oxner, for respondents, cite: As to recovery: 127 S.C. 64, 70; 128 S.C. 393; 90 S.C. 319; 142 S.C. 558; 83 S.C. 113; 94 S.C. 237; 35 L.R.A. (N.S.), 960; 6 C.J., 674, 724; L.R.A., 1917-F, 402.
June 13, 1929. The opinion of the Court was delivered by
This is an action at law, and, under the well-established rule, we are bound by the findings of fact of the Circuit Judge, when there is any competent evidence to sustain such findings. The evidence is entirely sufficient to support the conclusions reached by Judge Grimball. The result of his decree is entirely satisfactory to this Court. It will be reported.
The report of the Master, E. Inman, Esq., which was approved by the Circuit Judge, goes very thoroughly into the facts of the case and it will also be reported.
The judgment of this Court is that all the exceptions be overruled, and that the judgment of the Court of Common Pleas of Greenville County be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS concurs.
MESSRS. JUSTICES STABLER and CARTER concur in result.
The plaintiffs, a law firm under the name and style of Bonham, Price Poag, practicing law in the City of Greenville, brought this action against the defendant Mattie G. Farmer, as executrix of the will of B.D. Goldsmith, deceased, and Mattie G. Farmer and her daughter Willie Blake Farmer, individually, upon a written contract entered into between them and the executrix, dated November 16, 1925, by which the law firm was engaged to represent the executrix, "in all matters affecting the settlement of the estate of Blake Goldsmith, deceased, including any litigation now pending, or which may hereafter arise, and particularly in the matter of the contest of the will of Blake Goldsmith; to advise said party of the second part and to render all assistance necessary to a final determination of the estate matters."
Their compensation was fixed thus:
"In consideration for said services, the party of the second part agrees to pay to the parties of the first part one-fifth of the amount saved to the beneficiaries under the will by reason of the will being sustained; that is to say, the net difference between the amount the party of the second part would receive under the statute of distribution; and the amount the beneficiaries received under the will. Such amounts as the party of the second part has paid to the parties of the first part shall be credited on the fee above stated. In the event the will is not sustained, the party of the second part agrees to pay to the parties of the first part Two Thousand ($2,000.00) Dollars in full for all services, credit being given for the amount already paid."
The testator, who died April 22, 1925, was a colored man, living in the City of Greenville, who had amassed a very considerable estate; his heirs at law were his widow, Lida Goldsmith, his sister, Mattie G. Farmer, and a brother, Homer Goldsmith; he left no children.
The estate was appraised in June, 1925, real estate and personal property, at $91,939.90. (There is an error of $10 in the addition; the correct amount is $91,929.90.)
The real estate is appraised at ................... $ 75,280.00 And the personal property, consisting of cash on hand and in bank, an automobile, real estate mortgages amounting to $9,334.32 and stock, at ...................................... 16,649.90 ___________ Total .......................................... $ 91,929.90 The testator by his will bequeathed to his wife, Lida Goldsmith, $500, and to his brother, Homer, $1,000; the remainder of his estate he bequeathed and devised to his sister Mattie G. Farmer and her daughter, Willie.Almost immediately after probate of the will in common form, the widow launched a vigorous contest against the will, alleging that the testator was insane at the time of the execution of the will, and also upon the ground of undue influence on the part of the sister, Mattie. The plaintiffs were then employed to represent the executrix.
Proceedings in the Court of Probate to have the will proved in solemn form were instituted by the dissatisfied widow; they resulted in a decree sustaining the will. The contestant appealed to the Circuit Court. Pending the appeal, in November, 1925, the contending parties arrived at a settlement by which the widow was paid $15,500 in settlement of her dower claim. The complaint alleges: "That orders were taken dismissing the appeal, sustaining the will and ordering payment of $15,500, as dower, to Lidie Goldsmith"; this appears established by the evidence.
In order to effect that settlement, which was in cash, the defendant Mattie Farmer was forced to raise the money by a mortgage upon the real estate devised to her and her daughter, and to consummate this arrangement a proceeding was instituted in the Court of Common Pleas to obtain an order authorizing her to do so. It was obtained; the money raised; and the settlement concluded with the widow.
In all of these foregoing proceedings the plaintiffs represented the executrix, both officially and personally. There is no question but that they rendered efficient and valuable service.
It appears that the formal written contract between the plaintiffs and the executrix was entered into about the time that the settlement was effected; the complaint alleges that it was after the trial upon the proof of the will in solemn form in the Court of probate, although the plaintiffs had represented the executrix before and since the probate in common form.
Friction was generated between the plaintiffs and the executrix in reference to the mortgage for $15,000.00, which had been negotiated by the plaintiffs for her relief, through Messrs. Hodges and Leatherwood. She claimed a misunderstanding as to when interest was payable, stating that her understanding was it should be paid annually, and it was made payable semiannually, falling due when she had no money with which to pay it. Unpleasantness arose in connection with this paper, between the defendant and her attorneys, and they complained that, for some time after settlement of the will matter, her attitude was insolent and unpleasant, and that it was very difficult to do business with her. The plaintiffs, however, continued to work for and advise her, until in March, 1927, her conduct became so unbearable that they terminated the relationship between them and instituted the present action. In the transcript it is stated that the plaintiffs "withdrew from the case in April, 1927." The master and the Circuit Judge have both found that the plaintiffs were throughly justified in withdrawing from the relationship of attorneys and client, in which finding I thoroughly agree.
It will be observed that the plaintiffs do not allege in their complaint that they have complied with their engagement "to render all assistance necessary to a final determination of the estate matters," which was the basis of their compensation. Mr. Price, one of the plaintiffs, testified that "there were numerous matters that had not been finished." The evidence shows that among them were: (1) Advertisement that had to be made for creditors to prove their claims under Section 5407 of the Civil Code 1922; (2) the Austin Mortgage of $4,000.00 was to be foreclosed, and there was to be a contest in this foreclosure; (3) the Burke Mortgage of about $1,000.00 to be foreclosed; (4) the Williams mortgage, which they had just started to foreclose, had to be foreclosed; (5) Homer Goldsmith had brought a partition suit involving the home and three acres of land known as the Brutontown property, appearing in the appraisal, alleging that it was the property of his father and mother, and the defendant had answered; (6) testator's wife, Lida, had refused to sign the release carrying out the settlement of the main suit, the will contest, and had employed other counsel in these proceedings and was claiming that she had not agreed to the settlement; (7) the dower decree that had been taken in the Probate Court (when she refused to sign said release) apparently had not covered all the dower rights of testator's widow, and plaintiffs, for defendants, had brought an action to reform the decree, which was being contested; (8) testator's wife, Lida, was claiming as an additional amount the $500.00 legacy provided for her in the will; (9) a final statement and proceeding for final discharge would have to be made, and it was impossible yet to tell whether there may not be other contested matters in connection with the affairs of the estate.
The contention of the plaintiffs is that their withdrawal from the relationship was justified by the insufferable conduct of the defendant, although the purposes of their employment had not been fully accomplished; in this position I thoroughly concur; they contend further that for this reason they are entitled to the compensation fixed by the contract, less what the defendant would reasonably be required to pay for the unfinished work, which they fix at $300.00, the master and Circuit Judge at $500.00. In arriving at this compensation, they resort to the contract, and adopt as the basis the appraisal value of the estate.
Their calculation is substantially this (in view of the provisions of the contract), to ascertain the net difference between: (1) what Mattie Farmer and her daughter became entitled to under the settlement by which the will was sustained; and (2) what Mattie Farmer would have been entitled to if the will had been annulled.
(1)
(2)
The appraised value ............... $91,929.90 Less state tax .................... $ 1,700.00 Federal tax ....................... 262.00 Debts ............................. 559.00 Widow ............................. 15,000.00 Mortgage of Widow ................. 750.00 Bequest Homer ..................... 1,000.00 19,271.00 ___________ __________ Balance ........................ $72,658.90 The appraised value ............... $91,929.90 Less state tax .................... $ 1,700.00 Federal tax ....................... 262.00 Debts ............................. 559.00 2,521.00 __________ __________ Balance ........................ $89,408.90 __________ One-fourth to Mattie Farmer ....... $22,353.22 Amount Mattie Farmer and her daughter became entitled to under the settlement sustaining the will ................................... $72,658.90 Amount Mattie Farmer would have been entitled to if the will had been set aside .......... 22,352.22 __________ Difference ................................. $50,306.68 20 per cent. fee .............................. $10,061.24 By cash ....................... $2,500.00 By allowance .................. 500.00 By deduction .................. 500.00 3,500.00 _________ __________ Balance .................................. $ 6,561.24 Master's finding ............................ 6,436.45 __________ Difference ............................... $ 124.79 I think that the time certificate issued by the Bank of Commerce for $5,250.00, which was given to Mattie Goldsmith by the testator a few days before his death, should be deducted from the appraised value .................. $91,929.90 5,250.00 __________ $86,679.90 The balance on statement No. 1 above would be reduced to ............................... $67,408.90 And on statement No. 2 to ................... 21,039.72 __________ Difference ............................... $46,369.18 20 per cent. fee ............................ 9,273.84 Less deductions ............................. 3,500.00 __________ $ 5,773.84 Master's finding ............................ 6,436.45 __________ Difference ............................... $ 662.61 I do not think, however, that the plaintiffs are entitled to use the appraised valuation at all, as the basis of their compensation. The contract does not so provide. The measure fixed by it is perfectly clear, so far as the rule is concerned: "The net difference between the amount the party of the second part would receive under the statute of distributions, and the amount the beneficiaries received under the will," though it must be admitted that the plaintiffs, who drew the contract, set a difficult task for the parties and the Courts. The contract, by repetition, makes it perfectly clear that the compensation was intended to be based upon the benefit which the beneficiaries would receive by a decree sustaining the will. That part of it relating to the compensation, opens with the agreement that the executrix should pay to the plaintiffs, in consideration of the services which would end with the "final determination of the estate matters," 20 per cent. "of the amount saved to the beneficiaries under the will by reason of the will being sustained." Lest that should not be sufficiently lucid, the videlicet was added: "that is to say, the net difference between the amount the party of the second part would receive under the statute of distributions, and the amount the beneficiaries received under the will."The word "net," in its position in the contract, means nothing. The difference between two sums cannot be anything but "net," if indeed it be at all necessary to so characterize it. What manifestly was intended was that it should precede the word amount used in both instances: "The difference between the net amount," etc.
I do not think that the contract can mean anything else; and the necessary inquiry should have been, regardless of the appraised value of the estate, what benefit accrued to the beneficiaries from the decree sustaining the will. That would necessarily involve an ascertainment of the actual value of the assets, real and personal, diminished by the debts which had to be provided for under the terms of the will, as well as under the law. To ingraft upon the contract the parol agreement alleged and testified to by the plaintiffs, to the effect that the basis of the compensation should be the appraised value of the estate, and not the net amount to be received by the beneficiaries, is not only adding something to a written contract by parol, but adding something entirely inconsistent with the terms of that contract; it would be to charge the defendant with the face value of every mortgage listed thereon, regardless of the inquiry whether or not they were worth the face value; to adopt the exceedingly uncertain estimates of the value of $75,000.00 worth of real estate; and to take no account whatever of the debts of the estate.
The Court below allowed for certain debts in arriving at the net value of the estate: State inheritance tax, the federal tax, and a judgment of $559.00. It is inconceivable that an estate of $90,000.00 should be charged with but a single debt of $559.00; the other debts charged, the inheritance tax, of course, did not accrue until the death of the testator. A schedule of debts amounting to practically $30,000.00 has been filed as an exhibit in the case, including doctor bills, city taxes, state and county taxes, attorneys' fees (not including that of the plaintiffs), Court costs, etc. Other debts may be presented besides. It is manifestly unfair to the defendant to disregard them, in the face of the contract which fixes the basis of compensation as the difference between the net amounts receivable by the beneficiaries under the respective conditions.
If the will had been annulled, the net amount receivable by Mattie Farmer would have been ascertained by a conversion of the estate into money, deducting the liabilities and distributing what was left.
As the will was sustained, the net amount receivable by Mattie Farmer and her daughter can only be adjudicated in the same manner, or in a proceeding to which they would have something to say as to the valuations. To conclude them now by parol evidence of an agreement antagonistic to the written terms of the contract is as clear a violation of the parol evidence rule as could be conceived.
But it seems to me that there is an insuperable barrier to the recovery by the plaintiffs in this action. The plaintiffs are suing upon a contract which has not been, and can never be, fulfilled. They admit that they withdrew from it in April, 1927, brought suit, and no longer consider it as of any binding force, so far as future services are concerned. Their withdrawal has been justified by the intolerable attitude and conduct of the defendant Mattie Farmer, but, however, that may be justified, it does not change the unalterable situation that the contract, unfulfilled, has been terminated. Her conduct made it impossible for the attorneys to continue their services: she prevented them from carrying out the contract, and is directly chargeable, not with the breach of it, but with the termination of it, a severance of her relation to them as client to attorneys.
In 2 R.C.L., 957, the rule is thus stated: "The authorities universally recognized the right of a client to terminate the relation between himself and his attorney at his election, with or without cause, the existence or non existence of valid cause for the discharge of the attorney bearing only on his right to compensation. This power cannot be affected by a previous arrangement between the parties, as, for instance, by a contract for a contingent fee. The right of a client to change his attorney at will is based on necessity in view both of the delicate and confidential nature of the relation between them, and of the evil engendered by friction or distrust." See, also, 6 C.J., 673, 676, 677; Texas v. White, 10 Wall., 483, 19 L.Ed., 992; 4 Cyc., 954; Martin v. Camp, 219 N.Y., 170, 114 N.E., 46, L.R.A., 1917-F, 402; Price v. Western Co., 35 Utah, 379, 100 P., 677, 19 Ann. Cas., 589; Louque v. Dejan, 129 La., 519, 56 So., 427, 38 L.R.A. (N.S.), 389.
I think that it is equally clear that under such circumstances the attorney is limited to his action for damages on account of the breach, or to an action for compensation based upon a quantum meruit. It would appear anomalous, indeed, that one should be allowed to recover upon a contract admittedly terminated. At the same time, ample compensation for the work done, or for damages resulting from the breach, should satisfy the injured party.
In Martin v. Camp, 219 N.Y., 170, 114 N.E., 46, L.R.A., 1917-F, 402, it is said:
"The discharge of the attorney by his client does not constitute a breach of the contract, because it is a term of such contract, implied from the peculiar relationship which the contract calls into existence, that the client may terminate the contract at any time with or without cause. * * * The rule secures to the attorney the right to recover the reasonable value of the services which he has rendered, and is well calculated to promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential."
In 6 C.J., 724, it is said: "Where the complete performance of an attorney's services has been rendered impossible, or otherwise prevented, by the act of his client, the attorney may, as a general rule, recover on a quantum meruit for the services actually rendered, or he may have an action for damages; and in some states he may recover, in an action on the contract, the entire stipulated compensation, where he remains in readiness to render complete performance."
And at page 725: "Where an attorney withdraws from a case or otherwise abandons his employment for a justifiable cause, the client is liable for the services actually rendered, although such withdrawal or abandonment was without his consent or that of the Court."
In Lynn v. Agnew, 179 App. Div., 305, 166 N.Y.S., 274, affirmed Lynn v. McCann, 226 N.Y., 634, 123 N.E., 877, the syllabus is:
"After an attorney has been discharged by his client, * * * he can recover only value of services then rendered."
In Greenberg v. Remick Co., 230 N.Y., 70, 129 N.E., 211, it held that professional employment contract contains implied condition that, while attorney shall be bound by its terms, client may discharge him with or without cause, leaving him to recover for value of services.
In Matter of Board of Water Supply of City of New York, 179 App. Div., 877, 167 N.Y.S., 531, it is held that a client has a right arbitrarily to discharge his attorneys, and, if he does so, he is liable for services rendered by them only up to the time of discharge.
In Ritz v. Carpenter, 43 S.D., 236, 178 N.W., 877, 19 A.L.R., 840, it is held that a discharge of an attorney by his client does not constitute a breach of a contract between them, and the attorney is not entitled to the compensation agreed upon in the contract, but only to the reasonable value of the services which he has rendered, although the contract may well be considered in determining what, as contemplated by the parties themselves, would be the reasonable value of the services rendered.
In Polsley v. Anderson, 7 W. Va., 202, 23 Am. Rep., 613, the syllabus is as follows:
"An attorney made a special contract with a client to prosecute a suit in equity for a certain fee and a further fee contingent on success in the case. The client afterward dismissed his suit without the attorney's consent. Held, that the attorney was not entitled, as a matter of law, to recover the whole contingent fee; but that he might recover, either on a special count or a quantum meruit, the reasonable value of his services."
In French v. Cunningham, 149 Ind. 632, 49 N.E., 797, 798, the Court said:
"It is well settled that, where the complete performance of an attorney's services has been rendered impossible, or otherwise prevented, by the client, the attorney may, as a rule, recover on a quantum meruit for the services rendered by him. * * * If the compensation of the attorney agreed upon is contingent on the successful result of the suit, the measure of damages is not the contingent fee, but the reasonable value of the services rendered" — citing Scobey v. Ross, 5 Ind., 445; Brodie v. Watkins, 33 Ark. 545, 34 Am. Rep., 49; Webb v. Trescony, 76 Cal., 621, 18 P., 796; Moyer v. Cantieny, 41 Minn., 242, 42 N.W., 1060; McElhinney v. Kline, 6 Mo. App. 94; Duke v. Harper, 8 Mo. App. 296; Kersey v. Garton, 77 Mo., 645; Carey v. Gnant, ET Barb. (N.Y.), 574; Badger v. Mayer, 8 Misc Rep., 533, 28 N.Y.S., 765; Quint v. Mine Co., 4 Nev., 304; 3 A. E. Enc. L. (2d Ed.), 425 — 427; Weeks Attys. at Law (2d Ed.), § 334; Durkee v. Gunn, 41 Kan., 496, 21 P., 637, 13 Am. St. Rep., 300.
In Lawler v. Dunn, 145 Minn., 281, 176 N.W., 989, the syllabus by the Court is as follows:
"The discharge of an attorney without cause does not constitute a breach of contract because it is an implied term of such contract that he may do so, and in such case the attorney may recover only the reasonable value of the services which he has rendered."
In Tenney v. Berger, 93 N.Y., 524, 45 Am. Rep., 263, the Court said:
"While the attorney is thus bound to entire performance, and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated as an entire contract upon the other side; for it is held that a client may discharge his attorney, arbitrarily, without any cause, at any time, and be liable to pay him only for the services which he has rendered up to the time of his discharge."
In Johnson v. Ravitch, 113 App. Div., 810, 99 N.Y.S., 1061, the Court said:
"Every attorney enters into the service of his client subject to the rule that his client may dismiss or supersede him at will; and if he makes a contract for future services to his client, it is necessarily subject to such rule, and made with full knowledge that he may never perform such service, for the reason that his client may not keep him, and that in that event he will not be paid therefor, but will be entitled to compensation only for the services he has actually rendered."
In Watts v. Tood, 1 McMul., 26, the syllabus is as follows:
"Plaintiff was employed by defendant, to make a crop with him, in 1839, and was to receive for his services one-fourth of the crop made. About the last of August, a misunderstanding arose. Plaintiff was dismissed, and in September following, commenced this action: Held, that plaintiff, by commencing his action in September, after he was dismissed, treated the contract as being rescinded, and has waived his right to recover entire damages for the whole year; and has restricted his right of recovery to a compensation for his services on a quantum meruit."
In Union Bank v. Heyward, 15 S.C. 296, the Court said:
"The rule on the subject of damages, in cases of entire contracts, is this: If a party be dismissed without cause he becomes entitled to the full amount of the wages agreed upon; but in such case he should treat the contract as subsisting to the end of the year and he could not recover upon it until the expiration of the term for which he was employed. He has the right, however, to regard the contract as rescinded and put an end to, but in such case he will be held to have waived his claim to damages for the whole period, and will be restricted to compensation on a quantum meruit up to the time of dismissal."
Under ordinary circumstances, a party to a contract, rescinded on account of the act of the other party, would be entitled to one or the other of two remedies: To sue for damages on account of a breach of the contract by the other, or upon a quantum meruit for the value of services rendered up to the time of the breach. In cases, however, of attorney and client, the client who is apparently at fault in bringing about a rescission is exercising an exceptional right which attaches to that relation; and, while he may have terminated the contract, he cannot be said to have breached it, for he will have simply been exercising an unquestioned right, and could not be required to respond in damages for doing what he had the legal right to do.
In the case at bar, the plaintiffs were confined to the one remedy of an action upon quantum meruit for the value of their services up to the time of the rescission. Having brought their action upon the contract, there is no relief for them from a dismissal of the complaint, which cannot by amendment be transmuted into an action upon quantum meruit.
"The general rule is well established that suit on an express contract does not admit of a recovery on a quantum meruit; King v. Telegraph Co., 84 S.C. 73, 65 S.E., 944; Cleveland v. Butler, 94 S.C. 406 [ 78 S.E., 81]."
"The general rule undoubtedly is that plaintiff cannot recover upon a quantum meruit under a complaint based upon a special contract. Fitzsimons v. Guanahani, 16 S.C. 192; Birlant v. Cleckley, 48 S.C. 306, 26 S.E., 600; King v. W.U. Tel. Co., 84 S.C. 80, 65 S.E., 944. Hence the respondent might have complained of the charge, but the appellant cannot, because it was too favorable in allowing him to recover upon a special contract even though it should be found that he had failed to perform the stipulated services." Bowen v. Johnson, 87 S.C. 251, 69 S.E., 294.
"The question presented is, whether, under a complaint based upon a special contract for services to be rendered by plaintiff to defendant at a special price, the plaintiff can recover upon a quantum meruit. This question, it seems to us, is conclusively determined in favor of the appellant by the case of Fitzsimons v. Guanahani Co., 16 S.C. 192; for in that case the action was based upon a special contract, and it was held that the Circuit Judge erred in instructing the jury that the plaintiff might recover on a quantum meruit." Birlant v. Cleckley, 48 S.C. 306, 26 S.E., 600.
In this case the Court added:
"It is very obvious that both the allegations and proofs necessary to sustain a claim under a quantum meruit are very different from those necessary to sustain a claim under a special contract to serve another for a special time at a specified price, for in the former case it is incumbent on the plaintiff to show that he has served the defendant, the length of such service, and what amount his services are reasonably worth, while in the latter case it is only necessary for the plaintiff to show that he has performed his part of the contract. It would, therefore, be manifestly unjust that a party notified to respond to one kind of claim, should be required, in the midst of the trial, to respond to another kind of claim, depending upon issues different from those which he was notified to meet."
The appellant's counsel have received permission of the Court to review the case of Searson v. Sams, 142 S.C. 558, 141 S.E., 107.
The objectionable statement in that opinion, sought to be corrected, is the following quotation from 4 Cyc., 984: "When an attorney makes a contract to perform certain services for an agreed sum and the client, without any valid excuse or reason, discharges him or prevents the fulfillment of the contract, the attorney is entitled to recover the full contract price."
Having concurred in the opinion referred to, I may be free to say that the question now presented did not receive the consideration which its importance, as now appears, would have justified.
The true principle, as I have endeavored to demonstrate, is that a client has the right to discharge his attorney at any time, either with or without cause; he cannot therefore be compelled to pay damages for exercising a right which is an implied condition of the contract; the discharge does not constitute a breach of the contract, and there can be no recovery upon the termination of such contract except upon a quantum meruit. The cases cited to support the text quoted do not do so; they go no further than to hold in a few states that the attorney, in the event of the termination of the contract of employment by the client, may recover full compensation where he remains in readiness to render complete performance; the weight of authority being that he can recover only for services rendered. It is significant that the quotation referred to has been entirely omitted in the later article on "Attorney and Client" in Corpus Juris, which makes no reference to the cases relied on in Cyc. to support the proposition. In lieu of this statement, in the corresponding subtitle in 6 Corpus Juris, 724, appears the statement which is hereinbefore quoted. I do not think, therefore, that the case under criticism should be allowed to overturn the settled law upon the subject.
In my opinion, the judgment of this Court should be that the judgment of the Circuit Court be reversed, and the complaint dismissed, without prejudice to the right of the plaintiffs to bring an action based upon quantum meruit.