Yates v. Shepardson

*245On a motion for a rehearing, the following opinion was filed:

Per Curiam.

It seems to be assumed, on the motion for a rehearing, that the court has decided in the above opinion, that an attorney could not recover for professional counsel and advice under any circumstances. But this is a mistake. What the plaintiff proposed to show was, that some time in the year 1853 he was retained generally by the defendant as his attorney in all of his business, but without any price being stipulated therefor. He did not offer to show the amount of professional advice given, or what were the specific services rendered aside from those included in his bill of particulars, so that the defendant could meet the claim by proof as to what they were reasonably worth. It was not proposed to show that he gave professional advice in any particular matter for which he had the right to claim a proper compensation, or that he had declined acting as counsel for others against the defendant, and thus lost the opportunity of performing services for which he might possibly have received a reasonable fee. The bill of particulars doubtless embraced all the actual services rendered for which the plaintiff made any charge at the time. And if he occasionally gave the defendant any professional advice in his business matters, it must be assumed that he gave it either without any intention to charge therefor at the time, or that he covered it in the charges made for services referred to in his account. At all events, he did not attempt to show what particular service he did perform, but only that he was retained generally by the defendant, and frequently gave the defendant counsel and advice in minor business matters, for which no charge was made at the time. It was then proposed to show that the plaintiff was entitled to recover $1,000 per annum as an annual counsel fee from 1853 to 1868, inclusive, in *246consequence of this general retainer, and for advice given where no charges had been made, and for which no hill of particulars had or could he given. We do not suppose a general retainer, where no actual services are rendered for which charges are made, entitles an attorney to sue his client for an annual counsel fee.. Such is not our understanding of the effect of such an engagement. Of course, parties may, and sometimes do, agree upon an amount which shall be paid as an annual counsel fee for- professional advice, but this is the result of special contract. No such annual counsel fee can be claimed in consequence of a general • retainer; nor, for that matter, can any claim for compensation be made by reason thereof, where no services have been rendered.

Motion for rehearing denied.