
    Bright & Arledge vs. Samuel Taylor.
    Contbact. Attorney and client. Set-off. 'where, in a special contract between an attorney and his client, the former agrees to defend the latter on a charge of felony for a stipulated fee, and after rendering a pai’t of such services, and being willing and ready to render the rest, is prevented therefrom by the escape of said client from justice, said attorney is entitled under his contract to the entire fee agreed upon, and he may prove and recover said demand as set-off in an action of debt brought against him by said client.
    EROM ERANJKLIN.
    This is an action of debt from tbe Circuit Court of Eranklin, brought by Taylor against Bright & Arledge. The defendants pleaded payment and set-off, and under the latter plea established by proof a contract by which the plaintiff agreed to pay them five hundred dollars for conducting his defence upon a charge of larceny for which he had been arrested by warrant, and claimed that the plaintiff’s demand be abated to that amount. It appeared in proof that the defendants had attended to the case before the magistrate’s court, in which the plaintiff had been recognized to appear at the Circuit Court, and that they were present, ready and willing to do so in the latter Court, but were precluded therefrom by the plaintiff’s flight from justice. At the November Term, 1856, of said Circuit Court of Franklin, the case was tried, before Judge MarohbankS, who charged the jury that the defendants, under the foregoing state of facts, having but partially performed their contract, were only entitled to such reasonable compensation as their services were worth, which the jury might allow by way of set-off. The jury, upon the proof, rendered a verdict for the plaintiff, allowing a set-off on behalf of defendants of seventy-five dollars. The defendants brought the cause by writ of error into this Court.
    William E. Venable, for the plaintiffs in error.
    ITickeRSON and Colyar, for the defendant in error.
   HARRIS, J.,

delivered the opinion of the Court.

The defendant in error brought this action of debt against the plaintiffs in error, in the Circuit Court of Franklin county. To a declaration in the usual form the defendants pleaded payment and set-off, on which issues were taken.

Under the plea of set-off, the defendants introduced evidence to show that, by a special contract, the' plaintiff was indebted to them the sum of five hundred dollars, for conducting his defence on a charge of grand larceny. This claim was resisted, on the ground that they never rendered the services. On their part they insist that they conducted his defence before the committing court; that the plaintiff was bound in recognizance to answer the charge before the Circuit Court, where they were present, ready and willing to complete their part of the contract, but were excused and prevented from doing so by the plaintiff’s failing to appear: that he fled the country, and forfeited his recognizance.

On this point the Court charged the jury, in substance and effect, that if there was a special contract, by which the defendants were to hare five hundred dollars for conducting the plaintiff’s defence on the charge of larceny, and they rendered part of the services and failed to render the balance, on account of plaintiff’s failure to appear, then they would not be entitled to the five hundred dollars, but only to a reasonable compensation for the services rendered.

The jury found the defendants entitled to a set-off for the sum of $74 97-J, and judgment was rendered accordingly. The defendants moved for a new trial; their motion was overruled, and they have removed the cause to this Court by writ of error. The only question here presented is on an exception to the charge of the Court as above set out. This charge we think is erroneous. The plea of set-off is in the nature of a cross-action, and will be regarded as though the defendants had declared against the plaintiff on the special contract, and the plaintiff was resisting their right to recover, on the ground of the non-performance of a condition precedent. On the assumed state of facts, could such a defence prevail? We think not.

"Where there is a condition precedent, “the plaintiff must aver in his declaration, and prove, either his performance of the condition precedent, or an offer to perform it, which the defendant rejected; or he may aver his readiness to fulfil the condition until the defendant discharged him from so doing, or prevented the execution of the matter which was to be performed by him; for where the right to demand the performance of a certain act depends on the execution, by the promisee, of a condition precedent, or prior act, it is clear that the readiness and offer of the latter to fulfil the condition, and the discharge or hindrance of its performance by the promisor, are in law equivalent to the completion of the condition precedent, and will render the promisor liable upon his contract.” Chitty on Contracts, 9th Am. Ed., 638, side p., and authorities there referred to.

The judgment of the Circuit Court will he reversed, and the cause remanded for a new trial.  