The objection made by the plaintiff to the evidence offered by the defendants, that he was an attorney and counselor-at-law, at the time of the assignment to him of the demands in suit, was properly overruled. It was competent to the defendants to show that the plaintiff had purchased the demands, contrary to the statute, forbidding *Page 263 attorneys, etc., from buying choses in action, for the purpose of bringing suits thereon. (2 R.S., 288, 1st ed.) The fact that plaintiff was such attorney and counselor, would not, of itself, show that the demands were purchased in contravention of the statute, but it was a necessary step in the proof, and therefore admissible. The plaintiff's objections were that it was immaterial and improper, and that it proves no material fact in and of itself. It was manifestly material, as above shown, and therefore itself a material fact, and proper. But if it were erroneously admitted, it is seen that the error did not harm the plaintiff, for he was allowed to recover, which he could not have done, if the referee had regarded the proof sufficient to show a breach of the statutory prohibition.
In regard to the statute of limitations, the plaintiff insists that it does not apply to any of the demands which accrued from the services of his assignors in the prosecution of actions for the defendants, although those actions had proceeded to judgment more than six years before the commencement of this action, because there were prospective services in such cases for the attorney to perform, which have not yet been performed, and the contract was entire for the performance of those as well as for what had already been performed.
If the plaintiff's doctrine is adopted, I am unable to see on what principle the action can be maintained at all, in the face of the familiar rule, that when the contract is entire, "the entire fulfillment of the promise by either, is a condition precedent to the fulfillment of any part of the promise by the other." (Story on Con., § 22.) In that view the action is premature.
It is not found by the referee that there was any special contract between the defendants and the plaintiff's assignors in reference to the actions prosecuted by them. We cannot say, therefore, that such assignors undertook to collect the debts on which they brought the suits, or that there was any undertaking further than to prosecute the demands to judgment. The judgment is the termination of the action, and the rule, as stated by COWEN, J., in Lusk v. Hastings (1 Hill, *Page 264 659), is, "that the power of the attorney, under his general warrant, expires when judgment is rendered; for thereby, says Lord COKE, placitum terminatur (2 Inst., 378). `The defendant,' says GITTREL, `is out of court by the judgment; for the warrant of attorney is quousque placitum terminatur." So that it would appear that the learned judge who gave the opinion of the court in Walradt v. Maynard (3 Barb., 586), was correct in saying, "the authority of an attorney, in virtue of an original retainer in a suit, continues until final judgment is actually perfected, and as a general rule, and for general purposes, no longer." Although, for some specific purposes, his authority and obligation continue after judgment, still the judgment is the goal, upon reaching which, his general powers cease, and his fees, without demand, are to be deemed payable. The subsequent proceedings requiring the services of the attorney, are only contingently necessary, and when necessary, another attorney may perform them without formal substitution. In many, if not in most cases, they are dependent upon the will of the client, and the rule would be a very unreasonable one which should suspend the attorney's right to compensation at the will of his client. I do not think the law imposes upon an attorney the duty of waiting for his costs until an attempt to collect them from the other party has been made, nor is his right to them dependent, in any degree, upon their being so collected.
The rule undoubtedly is, that when a party employs an attorney to conduct a suit, it is an entire contract, to carry on the suit to its termination, unless determined by the attorney on reasonable notice. (Harris v. Osborn, 2 Cromp. Mees. Ex., 629; Whitehead v. Lord, 7 Ex., 601.) It was said by Judge GIBSON, in Foster v. Jack (4 Watts, 334), "the attorney's right to sue is not necessarily postponed till judgment is had, nor does it then necessarily arise, especially when money is to be collected, or the judgment to be enforced by further proceedings."
As the case stands upon the findings of fact, it is impossible for this court to say that any error of law has occurred in holding the demands barred by the statute of limitations. *Page 265 The character of the findings, in reference to the costs which accrued in actions, wherein judgments were obtained, is as follows: "That a judgment was entered in the Supreme Court, in favor of Joshua Webster, president of the Fort Plain Bank, plaintiff, against Barney Broker, James C. Adams, and Dan Scarten, defendants, on the 26th day of January, 1847, wherein Henry Adams and Daniel G. Lobdell were attorneys for the plaintiff. That there were no services done, or disbursements paid or incurred in said action, by said Adams Lobdell, for the plaintiff therein, subsequent to the 26th day of January, 1847; and that on that day the said plaintiff, in said cause, was indebted to said Adams Lobdell for their services and disbursements, as attorneys in said cause, in the sum of sixteen dollars and twenty-six cents." This action not having been commenced within six years from the said 26th of January, 1847, the referee's conclusion of law was, that as to the said $16.26, the plaintiff was not entitled to recover. It is impossible, I think, from the facts thus found, that the attorneys had not fulfilled their entire contract in bringing the action to its termination by the perfecting of the judgment. It is not stated that they were retained to collect the demand, nor does that fact necessarily follow, from the facts found. The facts found, therefore, are not sufficient to show that the plaintiff's demand was not barred by the statute of limitations, as the referee found it was. The party appealing to this court must present such a statement of facts as will show that a rule of law has been violated. If he does not, every intendment not absolutely unreasonable, will be against him. (Grant v. Morse,22 N.Y., 324.) But, as already intimated, the plaintiff is in this dilemma, his demands are barred by the statute, or they are not even now due and payable. If they did not become due upon the perfecting of the judgments, because the contracts were entire, and included the performance of services after judgment, no point of time has occurred since, when they became due. The portions of the entire contract which the plaintiff's assignors undertook to perform after judgment, are yet *Page 266 unperformed, and therefore this action is premature. Upon the plaintiff's theory he was not entitled to recover, as he did, the costs in the judgments which were perfected within six years before this suit was brought.
In regard to the question of interest, I have not been able to agree with my brethren, who think the plaintiff entitled to interest on the amount recovered by him from the time when the right of action thereon accrued.
As between the attorneys and their clients, the defendants, the compensation to which the attorneys were entitled, no rate having been agreed upon, was unliquidated. (Code, § 303; Stow v.Hamlin, 11 How., 452; Morse v. Westervelt, 3 Sandf. S.C., 762.) In such case the recovery is on a quantum meruit. It was said in Van Rensselaer v. Jewett (5 Denio, 143), "when one is sued on a quantum meruit for work and services, as there has been no special agreement, he does not know how much will solve the debt. The amount is quite uncertain, and it requires a judgment or verdict to render it certain." Hence, the debtor is not so in default in not paying the debt that he should be chargeable with interest. The ground on which interest was held to be recoverable in that case, both by the Supreme Court and by this court, on appeal, was that, inasmuch as the rent which was sued for became due at a day certain, although not payable in money, but in specific property and services, the defendant was in default for not paying it when due, in such specific property and services, and by reason of such default chargeable with interest on the value of the property and services when ascertained by the verdict. (2 Comst., 135.)
I am unable to see how the principle of that case can apply to this, and am therefore of the opinion that the judgment is right in respect to this question also, and that it should be affirmed.
Judgment reversed and new trial ordered, unless the defendant stipulates to add to the judgment interest on the two items allowed plaintiff from the dates when severally due; in which event, judgment affirmed, without costs of this appeal. *Page 267