Ellis v. Woodburn

VANCLIEF, C. The plaintiff is an attorney at law, and brought this action to recover a balance of $1,000, alleged to be due him from- the defendant for professional services. The ease was tried by a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff for $1,000. The defendant appeals from the judgment, and also from an order denying his motion for a new trial. The complaint consists of two counts for services rendered in defense of an action prosecuted by the Lake Valley Railroad Company,.a corporation, against this defendant, to condemn a right of way over defendant’s land, and in conducting negotiations for a compromise of that action. The first count is for the recovery of quantum meruit for such services, alleging them to have been reasonably worth $1,500, and that only $500 had been paid, and praying judgment for the balance of $1,000. The second count is for the recovery of a contingent fee of $1,000 in addition to the $500 admitted to have been paid upon an alleged express agreement between the plaintiff and defendant, to the effect that plaintiff was to defend the action to condemn defendant’s land, and at the same time to assist defendant to compromise that action, by selling to the plaintiff therein the land over which the right of way was sought; and in case the compromise failed, and the defense should be unsuccessful, the plaintiff was to commence proceedings to forfeit the right of the railroad company to operate the proposed road, on the ground of nonuser, if that could be proved. For all these services the defendant was to pay the plaintiff $500 absolutely, and the further sum of $1,000, on the condition of success, either in negotiating a compromise by sale of the land, or in the defense of the action, or in procuring a judgment forfeiting the franchise of the railroad company. As a performance of this condition it is alleged that, by the advice and assistance of the plaintiff, a compromise of the action to condemn [290]the right of way was effected by a sale of defendant’s land to the plaintiff in that action. It is admitted that defendant paid $500 before the commencement of this action, but it is alleged that he has refused to pay the contingent fee of $1,000, or any part thereof. The answer of the defendant admits his express promise to pay $500, for plaintiff’s services in defending the action, and in assisting to negotiate a compromise by selling his land, etc., but denies that he agreed to pay $1,000, or any further sum, upon any condition or contingency whatever; and alleges, on the contrary, that plaintiff expressly agreed to accept $500 in full satisfaction for all his services in the defense of that action, and in assisting to negotiate a compromise thereof; and also denies that the agreement extended to services in any contemplated proceeding to forfeit the right of the Lake Valley Railroad Company to operate its road. It appears, and is admitted, that, on the day when the trial of the action to condemn defendant’s land was about to be commenced, the case was compromised, through the advice and assistance of the plaintiff in this action, by a sale of the defendant’s land to the plaintiff in that action, for a price ($36,500) which the defendant consented to take, and which was then paid. As to the existence and terms of the express agreement alleged in the second count of the complaint, the plaintiff and defendant were the only witnesses. The plaintiff testified positively to such a contract in all its details; and the defendant testified as positively to the express agreement alleged in his answer, and that there was no agreement or promise to pay any conditional or contingent fee in addition to the absolute fee of $500. It thus appears that each pleaded and testified to a special express agreement covering the whole subject matter of the services to be rendered, and the fees or compensation to be paid therefor; but as to the existence of that part of the agreement, as alleged in the complaint, providing for a contingent fee or any compensation in addition to the absolute fee of $500, their testimony was squarely and irreconcilably conflicting. If the testimony of either is wholly true, there could have been no implied contract as to the compensation to be paid for any part of the services rendered, and consequently no recovery upon the first count of the complaint, since, to justify