I agree to the affirmance of the judgment. There is no question of a joint liability involved in the case as presented by the pleadings. The evidence does not clearly or distinctly establish the existence of a joint liability. Upon an issue as to whether J. B. Corlett and Joe Carson incurred the obligation to the plaintiff jointly and not jointly and severally the evidence was obscure and confused and would have been insufficient to support the affirmative side of such a proposition, but there was no such issue.
The declaration was in two counts. The first was upon a simple contract between Corlett and the plaintiff for the payment by the former to the latter of a definite sum of money for legal services rendered by the plaintiff. It was not a common count for a quantum meruit but upon a definite and specific promise by Corlett to pay a definite sum of money. The count recites at some length the consideration for such promise but it was not thereby converted into a common count upon a quantum meruit for services rendered. The second count was a common count though not in compliance with the statute upon an account stated.
The pleas were never was indebted, which applied to the second count; never promised as alleged, which applied to the first count; payment, release, the statute of limitations *Page 408 and the statute of non-claim — the last four applied to both counts — and a plea of set-off.
There was no evidence in support of the first count, no evidence of a definite sum due and none whatever of a promise to pay it. There was evidence in support of the second count upon an account stated.
Accounts were rendered by Oliver to Corlett, Carson and Crooked Lake Florida Farms Company both by letter and statements as early as April, 1927, and again to Carson and Corlett in January, 1928, by letter and a presentation of the account in the same form, by way of a statement and claim to the County Judge in September, 1930.
Upon the plea of set-off the plaintiff was entitled to recover, the second count being established by the evidence without contradiction.
There has been much discussion upon the subject of the survival of the right of action against a deceased joint obligor on a contract liability which is most interesting as well as edifying, but of no application to this case. There was likewise much evidence upon the subject of the reasonableness of the attorney's fees which was unnecessary.
The plaintiff is an attorney at law. Mr. Corlett and Mr. Carson came into his office and engaged his services in a cause that had been commenced by Fairchilds et al. against Corlett et al. Mr. Oliver agreed to represent the defendants in the litigation. After his services were concluded he estimated the value of them to be $3,000, and rendered a statement of the account to Corlett, Carson and Crooked Lake Florida Farms Company, deducted payments of $250. made by Corlett and $350. paid by R. A. Bennett and another check for $250. paid by Corlett and requested the payment of the balance from which he wanted deducted $750., which he owed Mr. Corlett. *Page 409 There was evidence that his services were rendered at the request of Mr. Corlett.
Whether the case of Brill v. Jewett, 262 Fed. Rep. 935, announces a correct proposition of law upon the survival of an action against the estate of a deceased joint obligor on a contract liability has no place in this case.
The judgment should be affirmed.