Knight v. Russ

Belcher, C. C. — The plaintiff presented a claim, properly verified, against the estate of Joseph Russ, deceased, for fifteen hundred dollars, “for professional services as attorney and counselor at law, rendered in the month of May, 1886, at the city and county of San Francisco, in the following cases,” etc. The cases referred to were four indictments in the United States district court for subornation of perjury, one of the indictments being against the deceased. The claim was rejected, and. thereupon this action was commenced to recover the amount thereof. The case was tried by a jury, and the verdict was in favor of the plaintiff for the full amount claimed. The defendants moved for a new trial, and have appealed from the judgment and from the order denying their motion.

At the trial, it appeared that the indictments were filed in court on the 3d of April, 1886, and demurrers thereto were interposed by another attorney; that one of the cases was taken up as a test case, and the demurrer therein was argued by the attorney, who filed it, on the [41228]th of April; that the demurrer in that case was sustained on the 2d of May, and thereupon all of the indictments were dismissed. The plaintiff then, after proving that he was an attorney at law and in good standing at the bar, introduced evidence tending to show that, after the demurrers were filed, he was engaged by the deceased to assist in the defense of all the cases, and that he was present in court at the time of the argument and at the time of the decision, and had rendered some service outside. He then called witnesses to prove the value of a retainer in the cases. This evidence was objected to, oh the ground that the action was brought to recover the value of professional services rendered, and not the value of a retainer. The objection was overruled, and an exception reserved.

It is earnestly argued for appellants that this ruling was erroneous, but we think it correct. The word “retainer,” when used in this connection, is defined by Bouvier to be: “The act of a client, by which he engages an attorney or counselor to manage a cause, either by prosecuting it when he is plaintiff, or defending it when he is defendant.” (Bouvier’s Law Diet.) It has been held that whenever an attorney is employed generally to prosecute or defend an action, he may, after the action has been terminated, recover from his client a retaining fee, although the contract of employment did not expressly or specifically mention a retaining fee. (Perry v. Lord, 111 Mass. 504; Blackman v. Webb, 88 Kan. 668.)