delivered the opinion of the Court:
This was an action of assumpsit for money had and received to the use of plaintiffs. The evidence shows, that defendants in error employed plaintiff in error as an attorney to defend a libel suit, commenced against their boat and a cargo of cotton, seized by the officers of the General Government on a charge of violating the trade regulations. Plaintiff in error succeeded in getting the suit dismissed and the boat restored, and the money for which the cotton had been sold was paid to plaintiff in error, and he afterwards paid to defendants in error all but five thousand dollars, which he held as his fee for attending to the suit.
It likewise appears that the parties were in Memphis when the seizure occurred. The boat and cotton were taken to Cairo, and the libel suit was brought in the District Court of the United States for the Southern District of Illinois, which involved the necessity of plaintiff in error coming to Springfield to attend to the case. It also appears that there was no agreement as to the sum defendants in error were to pay for his services. But young Van Arman testifies that when plaintiff in error was applied to for the purpose of obtaining his services, he was reluctant to engage in the defense, but defendants in error urged him, and spoke of the value of the boat and cargo, and said if plaintiff in error would undertake the business they would pay him whatever sum he might demand, and remarked at the time, that it would be better to give half of the boat and cargo than not to have plaintiff in error undertake the management of the business.
On the trial the court below instructed the jury for defendants in error, that if they believed, from the evidence, that defendants in error employed plaintiff in error to attend to their business as an attorney, and they said to him that if he would undertake_the business they would pay him whatever sum he charged, or substantially the same thing, this would not, of itself, entitle plaintiff in error to claim unreasonable compensation, and that it was for the jury to allow such sum as, under all the circumstances of the case, they believed to be fair and reasonable.
It is insisted that when defendants in error said they would pay whatever sum plaintiff in error might charge, they thereby precluded themselves from disputing his charge. And it is likened to an arbitration, or where it is agreed that a third person shall fix the price one party shall pay another. That when plaintiff fixed the sum, defendants were concluded by their agreement from questioning his determination, as they would have been had it been left to the determination of a third person. We can not assent to such a proposition as fixing the rights of the parties.
Assumpsit, we are informed by the text writers, and it seems to be uniformly so held by all of the adjudged cases, can only lie on an express, or an implied promise. In the former, the terms of the contract and the price to be paid are fixed and agreed upon by the parties. In the latter,' the labor is performed, the property had, &c., at the request. of one party, but the price to be paid is not fixed or agreed to, but it is left to be implied. And the law determines that it was the implied agreement of the partiés that it should be what it is reasonably worth. In this case there can be no pretense that there was an express promise to pay any definite sum. It then leaves it to fall under, and to be governed by, the rules relating to implied assumpsits. And being so it was for the jury to say, from all the evidence, what was a reasonable compensation. It would seem that the language employed by defendants only amounted to a promise that they would pay any sum charged, if it was reasonable. It could hardly have been intended to license him to make an unreasonable and oppressive charge. This can hardly be said to be the import of the language employed.
Eo case has been referred to, nor is it believed that any can be found, which takes the distinction urged in the argument. It is not the law, and the court therefore did right in refusing to so instruct the jury.- We do not see that their finding is against the evidence, and the judgment of the court below must be affirmed.
Judgment affirmed.