Green v. Sherritt

GRAY, J., pro tem.

The complaint, in two alternative counts, sought the recovery, upon an assignment, of $10,000 as compensation for legal services performed by Courtney L. Moore as attorney for defendant Maxwell A. Sherritt. The first count alleged that defendant, by a written contract, had employed Moore to defend him in a pending action until final judgment for a fee of $10,000; that Moore had fully performed his services and that a judgment of dismissal had been entered in that action on the same day on which the present complaint had been filed. The second count alleged that defendant had employed Moore to defend him in such action and that Moore had performed legal services of a reasonable value of $10,000. In answer to the first count defendant denied an absolute promise to pay a fee of $10,000, and Moore’s performance of the contract. He further affirmatively pleaded the terms of the contract and the circumstances under which the judgment of dismissal was obtained and, upon this basis, alleged that Moore was entitled only to a reasonable fee, to be fixed by mutual agreement, which had not yet been done, but that such fee was $1,000. As to the second count, the answer denied that the services rendered were of a reasonable value of $10,000 or any sum in excess of $1,000. A jury awarded plaintiff the sum of $7,500. Both parties appeal from the judgment

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entered on this ■ verdict. Defendant claims that the judgment must be reversed because there is a fatal variance between allegation and proof and because the present action was prematurely brought. Plaintiff contends that the court erred in denying his motion for a-directed verdict awarding the full contract fee of $10,000.

The evidence discloses the following facts: The action which Moore was employed to defend had been commenced previously by defendant’s divorced wife to set aside a property settlement and to compel him to account for $50,000. In it, injunctions had issued impounding all of his assets in that amount. He had been represented by an attorney who had withdrawn on the third day of trial when an affidavit of poverty made by defendant in support of a preliminary motion was proven false by a broker’s record which showed his then ownership of stocks. During a continuance granted defendant to enable him to get another attorney, He, after negotiations with Moore, executed the contract of employment. As to compensation, the contract provided that Moore was to receive, upon dissolution of the injunctions, $10,000 in money or in the securities impounded, or, if a judgment ordering an accounting was rendered and such accounting showed that defendant was not indebted in an amount equal to the securities impounded, Moore was entitled to a reasonable fee to be determined by mutual agreement. Before the resumption of the trial Moore and an assistant spent ten days in the study of the ease and the preparation of a defense. On its resumption Moore after lengthy arguments was permitted to so amend the answer as to plead a new defense to the effect that the court should not set aside the property settlement, even if collusive, because it had been fully executed, and he was also allowed to reopen plaintiff’s cross-examination. The actual trial consumed ten days and was followed by the preparation of exhaustive briefs. Thereafter the court orally directed defendant to account for $27,000 in bonds and $47,000 in cash, but upon Moore’s insistence required findings before signing an interlocutory judgment. Due to the difficulty of their preparation, findings were never presented to the judge and so no interlocutory judgment was ever granted. The trial judge and opposing counsel each testified that Moore had