
    291 F. 728
    TUPPELA et al. v. MATHISON.
    No. 3973.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 20, 1923.
    
      John H. Cobb, of Santa Barbara, Cal., for plaintiffs in error.
    R. E. Robertson, of Juneau, Alaska, and Enoch E. Mathison, of Astoria, Or., for defendant in error.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

It is contended that it was error to deny the defendants’ motion for an instructed verdict in their favor for the reason that the defendant Cobb was not a proper party defendant, and judgment could not properly be entered against him upon the cause of action. We are not convinced that Cobb was not a proper party defendant. The instrument under which Tuppela’s property was transferred to him in trust contained the provision that the trustee was to pay out of the property transferred all debts due and owing or to become due and owing by Tuppela. But if indeed Cobb was not a proper party defendant, the objection for his misjoinder not having been made until the close of the trial, came too late. Mackay v. Fox, 121 F. 487, 57 C.C.A. 439. And in any view of the case, a misjoinder of one of several parties defendant is no ground for an instructed verdict in favor of all the defendants.

It is urged that the motion should have been granted for the reason that the plaintiff, not being a member of the bar of Alaska, w^s without capacity to perform the services stipulated in his contract with Tuppela, and therefore could not recover either on the contract or a quantum meruit. The plaintiff had been admitted to practice in the courts of Oregon both state and federal. He was a regularly licensed attorney at the place where the.contract was made. In drafting the contract, ,he made special provision for the employment of local counsel in Alaska if he should deem it advisable. To carry out his contract it was not necessary that he should have been licensed to practice in the territory of Alaska. There can be no doubt, however, that had he appeared before an Alaskan court for the purpose of representing the interests of his client, he would have been permitted to appear as counsel in the litigation, under the rule of comity generally recognized in the states and territories, which is expressed in 2 R.C.L. 940: “It is the general practice of the courts of record in the several states to permit members of the bar in other states to appear as counsel on the trial or argument of causes. No license is necessary or proper for that purpose; the usual and proper practice being for the court in which the case is pending to grant leave ex gratia for the occasion.”

The defendants cite cases such as Tedrick v. Hiner, 61 Ill. 189, in which it was held that where a person falsely representing himself to be an attorney was employed by another as such, he could not recover for his services. The rule of those cases is not applicable here. There was no deception on the part of the plaintiff as to his authority to practice as an attorney. In Harland v. Lilienthal, 53 N.Y. 438, it was held that an attorney properly qualified and practicing as such could recover for services rendered upon the employment of his client although he had not been admitted to practice in the court where the services were rendered. In Brooks v. Volunteer Harbor No. 4, 233 Mass. 168, 123 N.E. 511, 4 A.L.R. 1086, it was held that an attorney, a member of the bar of the state of Maine, but not admitted to practice in Massachusetts, could recover attorney’s fees from a client at whose request he had performed legal services in Massachusetts. So in Miller v. Ballerino, 135 Cal. 566, 67 P. 1046, 68 P. 600, it was held that a person performing services in the prosecution of lawsuit at the request of a party thereto is entitled to-a reasonable compensation therefor.

It is contended that the motion should have been granted for want of proof that Tuppela ever discharged the plaintiff as his attorney. , There was evidence that Tuppela failed to send to the plaintiff his papers and his list of witnesses as he had promised, that he ignored numerous letters which the plaintiff sent to him, and that he employed other counsel in Alaska to represent him in the litigation, and through those counsel demanded of the plaintiff the surrender of all Tuppela’s papers which were in his possession. This was sufficient to justify the court in denying the motion and in instructing the jury in substance that the conduct of Tuppela was sufficient to operate as a discharge if it were such as to lead an ordinary person reasonably to believe that it was intended as a discharge and in instructing the jury in that connection to take into consideration all of Tuppela’s acts both of omission and commission from the date of his contract to the date of his employment of other counsel.

We find no merit in the contention that the motion should have been granted for the reason that the evidence showed conclusively that the plaintiff was guilty of such negligence as to justify his discharge. The -negligence is said to consist in his delay in commencing suit. It is true that the plaintiff was incapacitated by illness for a period of a month or so, but there is no dispute of the testimony that Tuppela was to send him a list of names of witnesses and other papers in connection with the litigation. Nor is it disputed that without such information the plaintiff could not safely commence the litigation. We find in the evidence no substantial ground for the discharge of the plaintiff as attorney for Tuppela.

One of the grounds of the motion for an instructed verdict was that the plaintiff’s remedy was on a quantum meruit and not for damages for breach of contract. No objection had been interposed to the form of the action, and it is sufficient to say that such an objection could not be made for the first time on motion for an instructed verdict. But we do not find that the form of action was inappropriate. Here was a special contract by which the attorney was to receive for his services a portion of the moneys and property recovered. The contract was broken by the client. The attorney was wrongfully discharged. In such a case, by the decided weight of authority, the attorney may recover damages for the wrongful breach of the contract. 6 C.J. 724; Watson v. Columbia Mining Co., 118 Ga. 603, 45 S.E. 460; Scheinesohn v. Lemonek, 84 Ohio St. 424, 95 N.E. 913, Ann.Cas. 1912C, 737; Weil v. Finneran, 70 Ark. 509, 69 S.W. 310; Dempsey v. Dorrance, 151 Mo.App. 429, 132 S.W. 33; Shevalier v. Doyle, 88 Neb. 560, 130 N.W. 417.

The judgment is affirmed.  