
    Scheinesohn v. Lemonek.
    
      Attorney to have a percentage of an account for collectioii — Entitled to agreed amount where client takes account from attorney — Attorney’s right of action on contract — Error for court to instruct jury — It may consider• nature of attorney’s services— Contract law.
    
    1. Where an attorney at law accepts an account for collection with • an agreement that he is to have as compensation twenty-five per cent, of the amount collected, and the client, without sufficient cause, and without giving .the attorney a reasonable time to make collection, wrongfully takes the account out of the hands of the attorney, a right of action for such breach of contract accrues at once in favor of the attorney, and upon establishing by proof that the account was a collectible claim, is entitled to recover damages. The measure of damages is not what is finally collected on the claim by some one else, but is the rate of compensation fixed by the contract.
    2. In a suit to recover generally for attorney’s fees for professional services claimed to have been rendered by plaintiff for defendant, it is error for the court to instruct the jury that if they “find the plaintiff rendered services for defendant at his request, and the service was of value to him you can take into consideration in that matter the nature of the service, and benefits that he has derived therefrom, or might have derived therefrom.”
    
      (No. 12010
    Decided June 30, 1911.)
    Error to the Circuit Court of Hamilton county.
    The controversy out of which the present proceeding in error arises was commenced in the court of a justice of the peace of Hamilton county, by the defendant in error against the plaintiff in error, and thence appealed to the court of common pleas of that county. The petition on appeal declared in general terms upon a claim for professional services alleged to have been rendered as an attorney at law of the value of three hundred dollars, without stating what the services were. The answer admitted that defendant below employed plaintiff below to do some work for him for which he agreed to pay plaintiff one dollar and a half, which he offered to pay and is willing to pay, but which plaintiff refused to accent, and. denied that defendant is indebted to plaintiff in any other sum. The allegations of the answer with respect to agreement that defendant was to pay plaintiff the sum of one dollar and a half, and that such a sum was offered, were denied by the reply.
    At the trial evidence was given by plaintiff tending to show that services were rendered by him in three matters, one known as the Glassmeyer matter of the value of twenty-five dollars, the same relating to the completion of a building contract. Another known as the Toohy matter, the evidence tending to show that a claim for two hundred and sixty dollars against Sarah Toohy was placed in plaintiff’s hands for collection by defendant, but that the same was taken out of his hands by defendant before plaintiff had collected any of said sum, and defendant had agreed to pay plaintiff twenty-five per cent, of the amount he should collect. In the third matter, known as the Adams matter, plaintiff’.s evidence tended to show that plaintiff had rendered services in relation to a certain alleged blackmailing letter received by defendant; that he had consulted with defendant for several hours on different days and had obtained an affidavit from the writer exonerating defendant.
    On defendant’s part evidence was given tending to show that the only service rendered by plaintiff in the Glassmeyer matter was to write a letter, for which he offered plaintiff a dollar, but the same was refused on the ground that defendant was a regular client. Also testimony tending to show that in the Toohy matter- plaintiff did not collect any of the amount due and that he gave up the account and refused to collect it. Also, that in the Adams matter, he had consulted plaintiff only in reference to a collection demanded from Adams, a letter having been received by defendant to the effect that if credit were not given the writer, trouble would be made defendant; that defendant did not employ plaintiff to secure any affidavit from Adams, but that plaintiff suggested the obtaining of a statement from Adams which he said would cost one dollar, and forty cents notary’s fee; that defendant offered plaintiff one dollar and a half, but plaintiff then demanded five hundred dollars.
    The jury returned a verdict for the plaintiff below in the sum of one hundred and eighty-six dollars. Judgment was thereupon entered for plaintiff which was affirmed by the circuit court. Scheinesohn brings error.
    
      Messrs. Hoffman, Bode & LeBlond, for plaintiff in error.
    When a court charges, or attempts to' charge on any matters which are at issue in the pleadings, it should charge fully on that, subject and not leave the charge misleading or misdirecting so that a jury would fail to get a full understanding of the law in the case, and that in this charge the court should have pointed out to the jury what constituted a reasonable opportunity to perform the employment for which he was hired. It should have charged that the jury should consider what services were performed in the matter, what benefit the client received by reason of those services, and having touched on the point in part it was an error for the court to fail to properly . instruct the jury on all the law applicable to the case. Haish v. Payson, 107 Ill., 365; Savings & Loan Co. v. Haley, 8 N. P., 557; Gas Co. v. Wiler, 1 N. P., N. S., 277; Christy v. Douglas, Wright, 485; Selover v. Bryant, 54 Minn., 434; Holmes v. Holland, 29 W. L. B. 115; Kittredge v. Armstrong, 28 W. L. B., 249; 3 Am. & Eng. Ency. Law (2 ed.), 419; People v. Supervisors, 45 N. Y., 202; Reves v. Hyde, 14 Daly (N. Y.), 431.
    We submit on authority of these decisions that the court having attempted to charge on the facts, should have charged fully, and that having failed to do so; and having, included in his charge that the attorney was. entitled to receive fees accord? iñg to the benefit to be derived therefrom by the client, or which he might have derived therefrom, has put a purely speculative case to the jury whereby 'they were misled, and it makes no difference whether in fact they were misled or not, the charge is erroneous. Lowe v. Lehman, 15 Ohio St., 179; Insurance Co. v. Reed, 33 Ohio St., 283; Insurance Co. v. Sherlock, 25 Ohio St., 50; Jones v. Bangs, 40 Ohio St., 139; Rapp v. Becker, 4 C. C., N. S., 139.
    
      Mr. Frank Seinsheimer, for defendant in error.
    ■ There being no question in the case- as to the fact that services were rendered as 'appears- from the pleadings, the court was correct in its statement to the jury that “as there is no question made as to the plaintiff’s rights-to sue, or that the services were rendered, you will direct your áttention,” etc.
    The plaintiff in error has contended in his brief that there was a • question' as to whether ' or not services were • rendered; but the pleadings show to the contrary and as there is no bill of exceptions here containing the evidence, we are left to judge this from the pleadings alone.
    The entire contention made befóte this court is that there was error in the charge of the court; no bill of exceptions containing the evidence, is before the court.’ Lalond v. Toledo, 6 C. C., N. S., 241.
    Unless therefore the court was in error in its statement of some abstract principle of. law, this, court will not. review .the charge for the reason that no evidence being before this court the chargécan not be applied to the facts which were shown to exist.
    Again it will be noted that parts of the charge only are taken and considered, while it is a rule of law that the charge must be taken as a- whole. Church v. Wilson, 9 C. C., N. S., 636; Railroad Co. v. Weinstein, 16 O. F. D., 365.
    It has been held in a long line of decisions that if an erroneous instruction is given it must have been prejudicial to warrant á reversal. Berry v. State, 31 Ohio St., 219; Banning v. Banning, 12 Ohio St.; 437; Fuller v. Coats, 18 Ohio St., 343; Railroad Co. v. Strader & Co., 29 Ohio St., 448; Baird v. Telephone Co., 10 C. C., N. S., 163; Way & Co. v. Langley, 15 Ohio St., 393.
   Spear, C. J.

Objection is made by defendant in error that the bill of exceptions in the record does not contain and does not purport to contain all the evidence given at the trial, and that therefore there is nothing in the record that a reviewing court can review. We think the conclusion does not follow. There appears to be enough in the bill of exceptions to raise the questions of law which are sought to be raised, although the bill is not of such character as to warrant a review of the case upon the evidence.

The principal error urged in this court relates to the charge of the court to the jury. Among other instructions the court gave to the jury the following:

• “As there is no question made as to the plaintiff’s right to sue or that the services were rendered }mu will direct your attention as to what if any agreements were made between the plaintiff and the defendant as to the amount of compensation for the first and third items and as to the second item as to whether the plaintiff abandoned the collection or whether the defendant took it out of his hands.
“If you believe from the evidence that the plaintiff performed' for, or rendered to the defendant legal services and that there was an agreement between them either before or after they were performed as to the price of compensation for such services then the plaintiff has a right to recover for. such services at- the agreed price and no other. If the defendant took a claim out of the plaintiff’s hands without giving him a reasonable opportunity to collect the same he is entitled to recover the agreed price on the sum collected by the defendant or any other person.
“If a client employs an attorney of a specific action, that is an entire contract. And if you find that the attorney broke the contract himself or acted in such a manner as to make the relation of attorney and client no longer possible, you must find that the attorney is not entitled to any compensation for such items of service.
“On the other hand, if you find that the plaintiff rendered services to the defendant at his request and that that service was of value to him you can take into consideration in that matter the nature of the services or benefits that he has derived therefrom, or might have derived therefrom, also the amount involved in fixing the amount if you find that the plaintiff is entitled to recover.”

In at least three particulars we think the foregoing embodies erroneous instructions. The record shows nothing to justify the statement to the jury that there is no question but that the services were rendered. The answer admits that some services were rendered, but it does not admit that the services claimed by the plaintiff to have been rendered were in fact'rendered. The petition is so general in its terms as to give no information respecting* plaintiff’s, claim other than that he rendered service as an attorney of the value of three hundred dollars. The answer is scarcely more definite, but it is definite enough to put in issue the demand of the plaintiff and put the plaintiff to his proof. It is not to be assumed, therefore, in support of the charge, that there was evidence given at the trial as to any admission by defendant with respect to the rendering of service inconsistent with the answer. Therefore the court should not have said to the jury that there was no question made that the services were rendered.

2. Referring to the pleadings and the statement in the bill as to the evidence, it is ■ clear that the testimony respecting the Toohy claim was a manifest variance from the petition, that pleading being a statement of a demand for services rendered and the testimony respecting the Toohy claim tending to support a declaration for a breach of contract by which plaintiff was prevented from rendering service. Such evidence was clearly inr competent, but the question of error as to that feature of the case seems not to have been saved. It is adverted to here because it seems to throw" light upon the entire proceeding.

■' The court’s instruction that if the defendant took a claim out of the plaintiff’s hands without giving him a reasonable opportunity to collect the- same he is entitled to recover the agreed price on the sum collected by the defendant or any other person is not, we think, an accurate statement of the law. The case .made’by the record presents a new question, one not .exactly paralleled by any case to which our attention has been called. The case is differentiated from many to be found in the books where attorneys have been discharged after entering upon the work by the fact that in this case no service had been rendered while in the other class of cases the attorney had rendered service and was allowed to recover on a quantum meruit. It is held in French v. Cunningham, 149 Ind., 632: “It is well" settled that, where the complete performance of an attorney’s service had been rendered impossible, or otherwise prevented, by the client, the attorney may as a rule recover on a quantum meruit for the services rendered by him,” citing numerous authorities. Also, that, “if the compensation agreed upon is contingent on the successful result of the suit, the measure of damages is not the ’.contingent fee, but the reasonable value of the ■services rendered,” citing additional authorities. The court adds: “But, whatever may be the rule as to other contracts, the rule as to contracts employing attorneys, is as we have shown, that if the same is broken by-’ the client the attorney may recover on a quantum meruit for the reasonable •value of the services, or he may sue on the contract. and recover damages for its breach.” The latter observation seems to have in view the loss by the attorney of whatever-value there is in-the' contract and to indicate that he may, by a suit for the breach, recover whatever damage he can prove he suffered including the loss of a valuable contract.

The question we have is by no means without its difficulties. It seems, as before stated, to be practically new so far as the books are concerned, although there are cases which possibly reach it in principle. It is not proposed to enter upon a review of all the cases treating of the general question, but a brief reference to a few may be useful.

Hochster v. De Latour, 20 E. L. & Eq., 157, was an action by a courier on a contract of employment for three months beginning June 1, 1852, for specified monthly wáges. Averment of readiness and willingness to enter upon the employment and perform the service. Breach that defendant, before said first of June, discharged the plaintiff and wholly broke and put an end to his promise. Held, that after the refusal by defendant plaintiff was entitled to bring action immediately, and that the jury might take into account all that had happened to the day of trial to increase or mitigate the loss.

Howard v. Daly, 61 N. Y., 362, approaches our case closely. The plaintiff was an actress and made a contract with Daly, a theatrical manager, to perform at the Fifth Avenue theater, for the season commencing September 15, 1870, and ending July 1, 1871, at a stipulated salary per- week. She was ready and willing to perform on her part, but the defendant repudiated the contract and refused to allow plaintiff to enter upon the service. It appeared that she had endeavored to obtain like employment at other theaters, but failed. The opinion is exhaustive and able, reviewing a great number of decisions. The holding is that plaintiff’s remedy was not an action for wages but for damages for breach of contract and that the damages were prima facie the amount of the wages for the full term.

In Baldwin v. Bennett, 4 Cal., 392, which was for breach of contract with an attorney for legal-services for an agreed compensation, where the client settled the claim without knowledge or consent of plaintiff, a recovery for the contract price was had, the court holding: “The general rule as to the measure of damages, in an action for the breach of contract, is the actual loss sustained. But where from the nature of the contract no possible mode is left of ascertaining the damage, we adopt the only measure of damages which remains, and that is the price agreed to be paid.”

Coffee v. Meiggs, 9 Cal., 363, was a suit brought to recover damages for the breach of an agreement to employ plaintiff to make certain alterations on a steam engine, he to furnish all material; the compensation to be $1,000 provided the alterations produced the desired result-; otherwise nothing. In the progress of the work the defendant stopped it. Plaintiff had judgment for the amount named in the contract. This judgment was affirmed, the court following the case in 4th California, supra, and holding that: “Where, from the nature of the contract it is not practicable to ascertain the amount of damages sustained by a breach of contract, the measure is the price agreed to be paid.”

Kersey v. Garton, 77 Mo., 645, was a suit for attorney’s fees. Plaintiff was employed by defendant to bring suit for certain land for a fee contingent upon success. The suit was brought and. was being prosecuted when defendant refused to have the cause proceed. Plaintiff had judgment. This judgment was affirmed, the court holding that: “If an attorney is' prevented by his client from completing his employment, he will be entitled to recover his fees as if the contract was fully performed.”

Webb v. Trescony, 76 Cal., 621, was for attorney’s fees. Plaintiff was employed to defend certain suits at an agreed compensation of $950. Plaintiff appeared and did all things necessary for over a year when defendant discharged him. Plaintiff recovered $950 and costs. This was affirmed, the court following earlier cases and holding that: “When an attorney at law is employed to defend certain suits' at an agreed price,- and is discharged from employment without cause before the suits are concluded, having fully performed the contract upon his part until discharged, the measure of damages for breach of the contract of employment is the full contract price agreed upon by the parties.”

After considerable reflection, and search of authorities, the majority of the court is led to the-conclusion that a cause of action accrued to plaintiff, for breach of contract, so soon as the claim was wrongfully taken out of his hands. If, then, at the trial, he established that the account was a collectible'-claim, á right to recover followed, and that right did not depend at all on whether the claim was afterward in fact collected by some one else. ■ Proof of such fact might establish the collectibility of the claim, but it was not essential to plaintiff’s right to recover. Then, what was the measure?- No rule seems wholly free from objection. The attorney had performed no service; hence the rule of 'quantum meruit does not apply; nor does it appear that the defendant had been in any way benefited. But the value of the attorney’s anticipated services had been fixed by the agreement of the parties. In the absence of any other ascertained rule of damage why may not this sum be taken as the one nearest in contemplation of the parties, and the one nearest a fair solution? The majority think it is, and that a recovery on that basis, properly ascertained, might attain a result not involving injustice and at the same time afford reasonable recompense to the party who, by the wrong of the other party, has lost the advantage of a valuable contract. Contracts such as the one before us are in their nature dissimilar from the ordinary contract of employment. Peculiar and confidential relations are often formed, and it not infrequently happens that in the relations thus brought about the attorney obtains private information respecting his client’s business which he may not afterwards divulge. This consideration would prevent in some cases which might be easily supposed, the discharged attorney from taking employment from the opposite party. Such instances would be rare, still they occasionally occur, and a rule of damage which would entirely ignore this consideration would hardly meet with general approval. These considerations, and the fact of the impracticability of ascertaining a satisfactory measure of damage sustained by the attorney from such breach differentiates the case presented from that involved in a case of ordinary employment, and. it is believed, justify fixing the measure of damages at the rate of compensation agreed to be paid.

3. The instruction that in case the jury should find that the plaintiff was entitled to recover for services, the jury might take into account the benefits defendant might have derived therefrom, is also erroneous. This instruction introduces the element of speculation, guesswork that is, and is necessarily misleading and prejudicial. Haish v. Payson, 107 Ill., 365.

The judgments below will be reversed and the cause remanded.

Reversed.

Davis, Price, Johnson and Donahue, JJ., concur. Shauck, J., concurs in the reversal of the judgment and in the second paragraph of the syllabus.  