dissenting.
This was an action brought by the plaintiff, as an attorney at law, against the defendant to recover an account of $600 00 for professional services, alleged to have been rendered the defendant in collecting an insolvent claim on one Scott for $1800 00. On the trial the jury found a verdict for the plaintiff, for the sum of $250 00, with interest from the commencement of the suit, exclusive of the $100 00, which the plaintiff had previously received from the defendant, making the sum of $350 00, for the services rendered in the case. The defendant moved for a new trial on the ground that the verdict was contrary to law and the evidence, and because the plaintiff’s account was barred by the statute of limitations, which motion was overruled by the Court and the defendant excepted. It appears from the evidence of the plaintiff, that the defendant placed in his hands an execution in his favor, against Scott for about the sum of $1800 00, fur collection in the month of June, 1866; that he learned from sources of information accessible only to himself, that Scott had a contract with the Southwestern Railroad to cut stringers, by which he was realizing a large sum per month, and that by garnisheeing the railroad company he could enforce the collection of the fi. fa; that he sued out a summons of garnishment against the railroad company in terms of the law, but which does not appear to have been served upon the railroad company. There is no positive evidence in the record that the plaintiff notified Scott that he had'sued out the summons of garnishment, but it is a fair presumption from the facts disclosed therein, that he did so notify him. Scott promised the plaintiff, as the attorney of Parker, to settle his claim in three payments; two of $600 00 each, and one for $557 00. On the 25th October, 1866, the plaintiff collected from Scott $600 00; $500 00 of which was paid over to defendant, plaintiff retaining $100 00 in his hands. *411In December thereafter, Parker, the plaintiff in ft. fa., wrote to Mr. Irvin that he had met with Scott and negotiated a settlement with him for the balance due on the ft. fa., Scott giving him his two drafts on the Southwestern Railroad Company, payable 25th January and 25'th February next thereafter, and instructed Mr. Irvin, as his attorney, to suspend all further proceedings in the matter, unless advised differently hereafter. After the receipt of this letter, Mr. Irvin, on the 22d December, 1866, wrote to the defendant, Parker, “that he had a right to do with his own as he pleased, and of course what suits you suits me. If you ever realize on those drafts, I shall congratulate, you. As you have taken the case out of my hands after I had it secured, I shall expect compensation, of course, proportional to the services rendered.” There is no evidence in the record that the plaintiff secured any part of the debt, which remained due after ■ the collection of the $600 00, but qn the contrary, the evidence is that Parker secured it.
The plaintiff introduced as witnesses W. Poe, Esq., J. M. Nisbet, Esq., Richard K. Hines, Esq., Richard Hobbs, Esq,, .and W. E. Smith, Esq., attorneys at law. Mr. Poe testified, that under the circumstances, he would consider $300 00 a reasonable fee for ■ securing the claim. Mr. Nisbet testified, that under the circumstances, he .would consider twenty per .cent, a reasonable fee, that in cases of great difficulty, when the defendant was insolvent, it was_ customary to charge a higher per cent. The testimony of the other witnesses was substantiallyvthe same as to the value of the services under the circumstances, that is to say, the securing and collection of the full amount of the debt for the benefit of the plaintiff by the attorney, out of an insolvent debtor. The plaintiff in this case seeks to recover from the defendant, for professional services actually rendered in the collection of an insolvent claim, .and there being no special contract, he can recover nothing more: Code, 441. The fundamental error on. the trial,-is in the assumption that an attorney at law is entitled to recover from his client for his professional services, in proportion, as *412his client has been benefited by his services, instead of what the services actually rendered were worth, especially when the evidence shows that only one-third of the debt was collected by the plaintiff. The money due on the fi. fa. was the property of Parker, the defendant, and his attorney who was employed by him to collect it had no legal right or claim to it. The attorney was entitled to be paid for the services actually rendered his client, whether the money due on the fi. fa. had been collected or not. An attorney is entitled to recover from his client (in the absence of any special contract) for the professional services actually rendered, whether the client is sue-' cessful in his suit or not. The section of the Code before cited declares, “where no special contract is made, the attorney may recover for the services actually renderedIn this case there was no special contract for the collection of the fi. fa. When it was placed in the attorney’s bands for collection, he was legally bound to exercise all his professional skill and knowledge to produce that result; that was the object for which he was employed, and if he had foiled to do so he would have been derelict in the discharge of his professional duty. In the absence of any special contract to the contrary, Parker, the client, had the clear legal right to control Ms own debt, and to have made tire settlement with Scott, if, In Ms judgment, it was for his interest to do so; and Mr. Irvin, In his letter of the-22d December, clearly recognized that right. What services were actually rendered by Mr. Irvin in this case? He sued out a summons of garnishment against the Southwestern Railroad Company, which was never served, obtained Scott’s promise to pay Parker’s debt in three installments, one of which only he collected, (to-wit:) $600 (X), and paid the same to Parker, less $100 00, which be retained; wrote several letters to Parker about the- claim, and that is all, so for as the record discloses. There is no evidence in the record what those services actually rendered were worth. The attorneys who testified in the case, stated that under the circumstances, they would consider $300 00, or twenty percent., a reasonable fee. What *413were the circumstances on which they founded their opinion? The main circumstances appear to have been, that Scott was insolvent, and Parker got his money, two-thirds of which he. collected himself, under the arrangement he made with Scott for its payment. This testimony does not prove what the services actually rendered by the plaintiff were worth, as the law requires. The opinion of the attorneys who testified in the case, was evidently based on the assumption that the plaintiff secured and collected the whole debt, whereas, the evidence in the record clearly shows that he only secured and collected one-third part of it, Parker himself, having secured and collected the other two-thirds. If Mr. Irvin had made a special contract with Parker- to collect the fi. fit. for twenty per cent, on the amount, or for any other specific sum, and Parker had interferred and settled the same with Scott without his knowledge and consent, then Mr. Irvin, as his attorney, could have required him to pay the amount he agreed to pay. In other words, Parker could not defeat his right under his special contract, by a settlement of the claim; but there was.no special contract, and the plaintiff can only recover, under the law, for the services actually rendered.
In my judgment, the verdict rendered by the jury in this case is contrary both to the law and the evidence. Under the law, the plaintiff was only entitled to recover for services actually rendered, and the evidence does not show what the ser- ■ vices actually rendered in the ease by the plaintiff were worth.
The law has wisely declared the rule in all cases where no special contract is made between attorney and client, and the Courts should enforce it. The object of the law was to prevent the introduction of just such hypothetical and speculative testimony, in relation to attorneys’ fees, as was introduced on the trial of this case, and to confine the investigation to the services actually rendered by the attorney. The statute of limitations was not pleaded in the Court below, and therefore, could not properly be considered by the Court.
In view of the facts contained in the record and the law *414.applicable thereto, I am of the opinion that the judgment of the Court below should be reversed,, and a new trial granted.