
    Rebecca S. Blaikie, as Administratrix, etc., of William Blaikie, Deceased, Respondent, v. Franklin Post, Appellant.
    First Department,
    April 8, 1910.
    Attorney and client — contract of retainer—agreement must be fair — novation — when new contract not supported by consideration.'
    An attorney cannot recover on a contract with his client giving Mm as compen-. sátion a certain percentage of moneys realized by the client from a sale of land without showing that the agreement was fair, that the client acted freely and. with understanding'; and when making the contract fully understood its purport and had knowledge of all material circumstances known to the attorney, and that he was not guilty of fraud and made no improper use of the confidence imposed in him. .
    Where in an action against the client there is no proof of the above facts, the jury should not be allowed to say whether the contract was fairly made, as they cannot speculate upon probabilities or find facts without evidence.
    An attorney entitled to a contingent fee in case of success cannot recover on a subsequent contract by which his client agreed to pay a specific percentage on ' the sale of property made at a time when the attorney knew his client would be defeated if he performed no services under the new contract, for there is no consideration therefor.
    Appeal by the defendant, Franklin Post, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 21st day of June, 1909, upon the verdict of a jury, and also from an order entered in said clérk’s office on the 24th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas It. Martin, for the appellant.
    
      George B. Hayes, for the respondent.
   Miller, J.:

On the 1st day of February, 1901, the plaintiff’s intes.tate, William Blaikie, was employed by the defendant to bring and prosecute a suit to set aside a mortgage held by Charles P. and W. W. Buckley on 220 acres of land in Linden, H. fT., owned by the defendant. On that day he gave the defendant a receipt for $100 for disbursements, and in it stated that his compensation was to be twenty-five per cent of the amount recovered. A suit was brought in the United States Circuit Court for the Southern District-of Hew York, which was decided adversely to the plaintiff in that suit on the 22d day of July, 1904. On the 15tli day of July, 1904, Blaikie procured the defendant to write him a letter stating that he should receive as full compensation for legal services in the Buckley controversy ten per cent of the amount the defendant should net from the sale of his Linden 220 acres, after paying mortgages thereon and advances made to him by different persons , named. It was also stated that that agreement was to take the place and be in lieu of all other agreements. On the 21st day of July, 1904, Blaikie.wrote the defendant a letter in which he stated: It is plain that the Buckleys see — as any intelligent man cannot help seeing, by reading the evidence, that the IT. S. Court had no jurisdiction of this cause while on the merits of (sio) the.preponderance is (sio) proof is decidedly their way, rather than yours. * * * In this situation unless the appeal is allowed, you had better take the best terms you can get from them.”

The Buckley mortgage was foreclosed and after various adjournments the Linden property was on the 3d day of May, 1905, sold at foreclosure sale- and bid in by the Buckleys for $25,000. Evidently some' arrangement was made whereby the defendant was to i'etain his equity, for on the 26th day of July, 1905, the defendant and liis wife, Lena Post, entered into a contract to sell the property to one Robinson for the nominal consideration of $203,000, and on the 27th day of September, 1905, they executed a deed to Robinson, pursuant to that contract. This action was brought on the contract of July 15, 1904, to recover ten per cent of the amount- which the defendant realized net from said sale. - -

Although the evidence plainly shows that the defendant realized the sum of only $12,538.54 the judgment i's for $8,878.54 and" interest. It is unnecessary to,go into details concerning the excessiveness of the verdict for the reason that, upon this record, there is a fundamental difficulty in the way of a recovery.

There is no evidence to show the circumstances under which, the contract of J uly 15, 1904, was obtained or what occurred between the parties to it. The learned trial justice charged, the jury that the plaintiff could not recover without proof “ that the agreement was fair, that the client acted freely and understandingly, that the client who executed the instrument fully understood-its purport and that it was made by him with full knowledge of all the material circumstances known to the attorney and was in every respect free from fraud on the part of the attorney or misconception on the part of the client and that a proper use was made by the attorney of the confidence reposed in him.” That charge was undoubtedly correct. It is unnecessary to pite authority in support of it because at all events it is the law of this case on this appeal. Although thus charging the jury the learned court permitted them to say whether it was probable that Blaikie told the defendant all of the facts and that the contract was fairly entered into. Of course a jury cannot speculate upon probabilities or find a fact without evidence to support it. At the time of the trial the defendant was an old man, seventy-seven years of age. The record shows that Blaikie had brought a suit to set aside a mortgage in a court having no jurisdiction of the subject-matter,.under an agreement pursuant to which he was to have twenty-five per cent of the recovery; that more than three years thereafter, just before a decision was to be rendered, which he knew must be adverse, even if he had not discovered it before commencing the suit, and after all of his services had been rendered, he procured a contract from his client, that instead of receiving, twenty-five per cent of what he might recover in the action thus improvidently brought, he should have ten per cent of all the defendant might realize from the sale of the property. If the defendant was in the possession of his senses it is not only probable, but certain, that the attorney did not communicate to him the fact that he was bound to lose the suit because the court did not have jurisdiction".

Moreover, so far as this record discloses, there was no consideration for the contract in suit. It does not appear that Blaikie rendered any service after it was made. He gave up a contract under which the services had already-been performed' and pursuant to which he was to receive nothing, for a contract pursuant to which he was to receive a substantial sum.

The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingeaham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  