Opinion
No. 31847
Decided March 22, 1950.
Attorney at law — Client may dismiss attorney — Valid dismissal cause bears only on question of right to compensation — Recovery limited to reasonable value of services rendered, when.
1. A client may dismiss an attorney at any time, and the existence or nonexistence of a valid cause for the dismissal bears only upon the question of the attorney's right to compensation or damages.
2. In the absence of an express contract between attorney and client which covers the work to be done by the attorney or an objective to be accomplished by him and specifies the amount or measure of compensation he is to receive therefor, the attorney, upon dismissal by the client, even without cause, is limited to the recovery of the reasonable value of the services he has rendered for the client to the date of dismissal.
APPEAL from the Court of Appeals for Summit county.
George G. Marshall, domiciled in Summit county, Ohio, died testate on January 3, 1946, leaving a substantial estate. Thomas B. Bolton, an attorney at law of the city of Cleveland, had drawn Marshall's will and had represented him in various affairs during his lifetime. In January 1946, Bolton and Louise McDaniel Marshall, widow of George G. Marshall, who was named executrix in his will, went to the Probate Court of Summit County to probate the will.
With the assent and acquiescence of the widow, Bolton designated himself in the application for letters testamentary as the attorney who would represent her in matters relating to the trust, and at that time it was the widow's intention that Bolton should carry through as attorney in the settlement of the estate.
On or about January 23, 1946, Bolton and the law firm of which he was a member were dismissed as attorneys for Mrs. Marshall, the executrix.
Subsequently, Thomas B. Bolton and Harvey O. Mierke, partners under the firm name of Maurer, Bolton Mierke, filed their petition in the Court of Common Pleas of Summit County against the widow individually, praying judgment in the sum of $25,000.
In substance, the material allegations of the petition are that shortly after the death of George G. Marshall, plaintiffs "were employed by the said defendant to act as attorneys for the administration of said estate"; that they so acted from January 8, 1946, to January 23, 1946; that in pursuance of their employment they had defendant appointed executrix, arranged for her bond, procured the appointment of appraisers and proceeded with the appraisal and inspection of the property of the estate; that on January 23, 1946, without due cause, they were discharged; that they had then performed services in such estate, to the reasonable value of $880; that the estate inventoried at about $677,000 and consisted largely of real property; that they were at all times ready and able to perform the services required; and that they are entitled to be "reimbursed" in the sum of $25,000.
The answer admits that plaintiffs performed the services alleged between the dates alleged; and that on January 23, 1946, defendant caused them to be notified that their employment was terminated but with the advice that she would pay them for the services rendered upon presentation of a statement. The answer then admits that there is due plaintiffs the sum of $880 for the services performed as claimed in the petition, and concludes with a general denial.
The facts established by the evidence adduced at the trial before the court and a jury, although more detailed, correspond essentially with the facts narrated above. It was disclosed that much of the property left by the decedent comprised interests in real property belonging to him and his brother jointly, and that plaintiffs' dismissal was due, in part, to the objection of the brother, because of past experiences, to their retention in connection with the administration of the estate.
Plaintiffs called three witnesses, attorneys at law familiar with the administration of estates, who, in response to long hypothetical questions and over defendant's objections, testified as to what in their opinion would be the reasonable value of legal services necessary in the complete administration of the George G. Marshall estate.
At various appropriate stages of the trial, the defendant moved for judgment or for a directed verdict, which motions were overruled.
Upon the return by the jury of a verdict for $17,000 in plaintiffs' favor, the defendant moved for the entry of judgment for plaintiffs in the sum of $880, notwithstanding the verdict, which motion was sustained, followed by judgment for that amount.
An appeal on questions of law to the Court of Appeals resulted in a reversal of the judgment below and a remand of the cause to the trial court with instructions to overrule the motion for judgment notwithstanding the verdict and to enter judgment for plaintiffs for $17,000 in accordance with the verdict.
Allowance of the motion to require the Court of Appeals to certify its record places the controversy before this court for disposition on the merits.
Messrs. Bolton, Taggart, Boer, Mierke McClelland and Messrs. Slabaugh, Guinther Pflueger, for appellees.
Messrs. McKeehan, Merrick, Arter Stewart, Mr. Walker H. Nye and Messrs. Wise, Roetzel, Maxon, Kelly Andress, for appellant.
At the outset of this opinion, it is important to note that under the pleadings and the evidence in this case there is no claim or proof of any express agreement between plaintiffs and defendant covering the services actually to be performed by plaintiffs and the amount they were to receive therefor.
If, under the circumstances disclosed by the evidence, it can be said there was any implied understanding between the parties on the subject of attorney fees, the reasonable deduction is that it would comprehend fees in such amount as might be allowed and approved by the Probate Court having jurisdiction. See Trumpler, Admr., v. Royer, 95 Ohio St. 194, 115 N.E. 1018.
The vital and decisive question presented on this appeal is whether attorneys employed to represent an executrix in the administration of an estate, whose employment is terminated without fault on their part, may, in the absence of an express agreement covering services and compensation, recover in an action at law the amount which they might have earned had the relationship of attorneys and client continued until the estate had been fully administered.
The universally recognized rule is that a client may dismiss an attorney from his service at any time, and the existence or nonexistence of a valid cause for the dismissal bears only upon the question of the attorney's right to compensation or damages. 4 Ohio Jurisprudence, 440, Section 30; 7 Corpus Juris Secundum, 940, Attorney and Client, Section 109; 5 American Jurisprudence, 281, Section 34.
In 7 Corpus Juris Secundum, Attorney and Client, 1028, Section 169, the following statement appears:
"An attorney discharged without cause may generally recover the reasonable value of the services rendered by him to the date of the discharge. In some jurisdictions such a discharge gives rise to an action for breach of contract in which the damages are ordinarily held to be the agreed contract price; but under other authorities such discharge does not subject the client to such an action for damages, but confines his liability to the reasonable value of services rendered prior to the date of discharge." (Emphasis ours.) See, also, 5 American Jurisprudence, 382, Section 202.
The two Ohio cases cited and commented upon by counsel in their briefs and in oral argument and which deal with the right of an attorney to an award of damages where the client breaches a contract of employment are Scheinesohn v. Lemonek, 84 Ohio St. 424, 95 N.E. 913, Ann. Cas., 1912C, 737, and Roberts v. Montgomery, 115 Ohio St. 502, 154 N.E. 740.
In the Scheinesohn case the attorney accepted an account for collection under a specific agreement that his compensation was to be 25% of the amount collected. The client, without good cause and without giving the attorney a reasonable time within which to make collection, took the account away from him. In such circumstances, this court held that a right of action for such breach of contract accrued to the attorneys at once, and, upon proof that the account was collectible, the measure of damages to which the attorney was entitled was the rate of compensation fixed by the contract and agreed to be paid. In that case the court stressed the point that "the value of the attorney's anticipated services had been fixed by the agreement of the parties."
In the Roberts case, the clients had sustained personal injuries in a collision of motor vehicles and entered into written contracts with a firm of attorneys, each of which contracts recited that the attorneys were to receive for their services, in pressing claims for damages, one-third "of whatever amount [is] received by me [the client] in case of trial or settlement." Thereafter, the clients employed another attorney and later effected a settlement with the insurer of the corporation which had caused their injuries, although at all times their original attorneys were diligently and in good faith looking after their interests. In an action by the original attorneys to recover damages for the breach of the contracts of employment, this court held that they were entitled to " the percentage of the settlement money designated as compensation in the contract."
In both the Scheinesohn and Roberts cases there were definite and specific agreements between attorney and client not only pertaining to the services to be performed and the results to be achieved but fixing the precise amount or measure of compensation to be received by the attorney for the completion of the work undertaken. This, in our opinion, is the factor which distinguishes those cases from the instant one.
As has been previously remarked, in the present case there was no express agreement between the parties relating to the services to be performed and the sum to be paid for their rendition.
A long time ago the Supreme Court of Alabama made the following comment in the opinion in the case of Dickinson v. Bradford, 59 Ala. 581, 584, 31 Am. Rep., 23, 25:
"Having entered on the duties of the relation [of attorney and client] without a contract stipulating the measure of compensation, the appellee and his partner had no other legal claim on the appellant than the right to demand of him reasonable compensation for their services."
Such statement corresponds with the general rule expressed in 7 Corpus Juris Secundum, 1079, Attorney and Client, Section 191, as follows:
"When an attorney renders services, upon request or employment, without any agreement as to his fee, he is entitled to a fair, just and reasonable compensation, which is measured by the reasonable value of the services rendered to the client."
And in the case of Gamewell v. Killion (Tex.Civ.App.), 282 S.W. 873, 874, the court held that "where there is no contract governing the amount of an attorney's fees, and he is wrongfully discharged before the contemplated services have been fully rendered, he is entitled to recover only reasonable compensation for the services performed."
See, also, 5 American Jurisprudence, 379, Section 198, and 25 Corpus Juris Secundum, 582, Damages, Section 79.
We can readily understand the disappointment and chagrin experienced by plaintiffs in the loss of a valuable item of business; but in a situation of the kind disclosed here, this court entertains the view that recovery by plaintiffs must be limited to the reasonable value of the services actually performed in pursuance of the employment. The value of such services herein was alleged and conceded to be $880.
Summarizing, a client has the right to discharge an attorney at any time, with or without cause, subject only to the obligation to compensate the attorney, who is without fault, either on the basis of the reasonable value of the services theretofore rendered or according to an express contract as to compensation, if any, between the parties. Where attorney and client have entered into an express contract which covers work to be done or an objective to be accomplished by the attorney and specifies the amount or measure of compensation to be paid therefor, and the client breaches the contract by discharging the attorney or otherwise preventing performance on his part, the attorney may maintain an action on the contract for the breach thereof, and under the rule laid down in the Scheinesohn and Montgomery cases, the measure of recovery is the compensation expressed in the contract. See, also, Goodkind v. Wolkowsky, Admr., 132 Fla. 63, 73, 180 So. 538, 543. Compare Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St. 182, 185, 48 N.E. 888, 889.
In the numerous cases we have examined, which recognize the right of an attorney to damages for the breach of a contract of employment, a situation was presented where there was a contract, often in writing, defining the particular piece of work to be done and stipulating the amount or measure of compensation to be paid for doing it.
Because of the conclusion reached, it becomes unnecessary to discuss and decide other questions raised by the parties.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART and TURNER, JJ., concur.
TAFT, J., not participating.