Elconin v. Yalen

PRESTON, J.

In this action, brought by plaintiff to recover fees alleged to be due for services rendered by him as an attorney at law on behalf of defendants in the matter of negotiating for settlement or instituting and prosecuting a suit on account of certain personal injuries and damages sustained by defendant William Yalen, the judgment is hereby affirmed. In the following statement of the ease may be found the ground upon which we base our conclusion:

Plaintiff, by the first count of his amended complaint, alleged an oral contract with defendants whereby he was to render all necessary services for them in the matter of said claim, receiving as consideration therefor, one-third of any sum accepted by them in settlement thereof or one-third of any judgment obtained and collected in the event of institution of suit, exclusive of court costs. He further alleged the following fact, established by the evidence; that after an unsuccessful attempt to effect a settlement, he filed suit on behalf of defendants and caused the ease to be set for trial, after which he was discharged by them; that a judgment in their favor was subsequently obtained in the sum of $5,000, which they compromised for $4,500. He therefore prayed that one-third of the sum so received by defendants, or $1500, plus costs in amount of $15.90, be awarded him.

[548]

His second cause of action was on a common count alleging an indebtedness of $1546.90 for services rendered and costs, which sum was a reasonable charge therefor. Said amount, $1546.90, included, in addition to said $1500 and $15.90, an item of $31 which plaintiff also sought to recover and which he alleged by the third count of said amended complaint, covered the amount due him for legal services rendered defendants and costs advanced in their behalf in a justice’s court action. Said items of $31 and $15.90, totaling $46.90, are not disputed and no dissatisfaction is expressed with that portion of the judgment awarding plaintiff said sum.

The answer of defendants was a general denial, denying the existence of any contract with plaintiff, any agreement for payment of a one-third contingent fee, or any indebtedness whatsoever to him. Upon the trial, however, ‘ defendants testified to the existence of an oral contract whereby they had employed plaintiff, but they denied that the terms thereof were as alleged by him or that they had ever entertained his proposal that they pay him one-third of any sum recovered. That is, they claimed that said contract, with respect to plaintiff’s fee, provided for payment to him of ten per cent of the sum recovered in the event of settlement without suit or twenty per cent of any judgment obtained and collected in event of settlement after trial.