Shain v. Forbes

Belcher, C. C. This is an appeal from a judgment of nonsuit.

The action was originally brought by the plaintiff, as assignee of one Vincent Neale, an attorney at law, to recover from the defendants, Alexander Forbes and William McPherson, the sum of $2,021, alleged to be due for professional services performed, and money expended for them, at their special instance and request, by plaintiff’s assignor.

The defendants jointly answered the complaint. The answer averred in substance that the only professional services ever rendered by Neale to the defendants, or either of them, were in the matter of the collection of a promissory note for five thousand dollars, made by E. J. Weston and S, Boushey, and payable to the defendant Forbes and L. L. Robinson; that the note was secured by a mortgage upon real property, and on the day of its date was indorsed and delivered by the payees thereof to the firm of Forbes Brothers, then composed of the defendant Forbes and one Charles Forbes; that the indorsers waived demand and notice of non-payment of the note; that after the maturity of the note, and on or about the 6th of October, 1880, Forbes Brothers retained and employed the said Vincent Neale, as attorney at law, to collect the amount due for principal and interest on said note, and to foreclose the said mortgage, which provided for an attorney’s fee, in the event of foreclosure, of ten per cent upon the amount that might be found to be due; that Neale was employed to collect the full amount due, first, through a sale of the mortgaged property, and second, by a personal judgment for any deficiency against the makers and indorsers of the note; that Neale was so [579]employed under a specific agreement that the compensation for his services should consist of $100, afterward increased to $135, and any sum that might be collected over and above the principal and interest of the note and the costs and expenses, other than counsel fees; that this agreement ever since has been, and now is, in full force and effect; that in pursuance of the said agreement Neale commenced two actions, in the name of the defendant Alexander Forbes, as plaintiff therein, to collect the note and foreclose the mortgage, which, for reasons stated, were dismissed, and that Forbes Brothers paid him $200 instead of $135, as agreed; that after these actions had been dismissed, Forbes Brothers, under the advice and direction of Neale, “sold, indorsed, assigned, and delivered the said promissory note to the defendant 'William McPherson, and thereafter the said Vincent Neale continued his services under the agreement aforesaid, but as the attorney for the defendant William McPherson, who ratified and confirmed the said agreement”; that McPherson, by Neale as his attorney, commenced an action to collect the note and foreclose the mortgage against Weston and Boushey, the makers and mortgagors, and against Forbes and Robinson, the payees and indorsers, and that such proceedings were subsequently had in the action that judgment was rendered therein as prayed for against all of the defendants, except Robinson; that judgment was rendered in favor of Robinson, and from that judgment and an order denying a new trial the plaintiff, by Neale as his attorney, duly appealed to the supreme court, where the appeal was still pending; and that the foregoing constituted all the professional services rendered by the plaintiff in this action and alleged in his complaint.