Surratt v. Wagner

Parke, J., delivered the opinion of the Court. William H. Surratt, a lawyer, and Henry W. Wagner, who was in the real estate business, held the relation of attorney and client throughout a long period, which was ended by a dispute over a charge by the lawyer of $500 for pro ¹⁶⁰ fessional services. The controversy developed, into a suit, which resulted in a verdict, for the defendant. The errors assigned relate to the second and third prayers of the defendant, and the propriety of the granting of these two prayers is the sole inquiry on this appeal.

The plaintiff offered testimony tending to show that he had been employed by the defendant as his lawyer and in that capacity and by virtue of that employment had rendered the defendant professional services which were fairly worth the fee charged of $500. The defendant did not deny the services nor their value, but the defense was that they were rendered upon an express agreement that no fee would be charged; and, if not, that the claim had been agreed and satisfied. The plaintiff could not recover if either of these defenses were found to be true. There was testimony on the part of the defendant to' support either theory.

The third prayer of the defendant put the first alternative defense. In substance the prayer was that, if the jury should find that the now defendant, at the instance and request of the now plaintiff, and for his benefit, had, in consideration of the promise and undertaking of the now plaintiff that he would represent without charge said now defendant in any action brought ón account of such refusal declined to account and pay to certain third parties any sum of money which said third parties were' then demanding and claiming of the now defendant, the latter would not be liable to the now plaintiff for any professional services rendered in connection with a suit against the now defendant arising out of such refusal. The second prayer presented the defense that there could be no recovery if the jury should find that the now defendant tendered, and the now plaintiff accepted, the check offered in evidence from the now defendant to the now plaintiff for the sum of $2,500 in full settlement and satisfaction of the professional services for which the action at bar was brought. The plaintiff objects to both the third and second prayers on the ground that each prayer ignores the testimony upon which the other depends.

In other words, the vice of the third prayer is its omission of all reference to the testimony ¹⁶¹ oil the part of the defendant that relates to an accord and satisfaction of the plaintiff’s demand, while that of the second is its exclusion of all the testimony of the