Eliot v. Lawton

Dewey, J.

The only question arising in the present case is as to the effect of the statute of limitations upon the demand of the plaintiff. The services commenced more than six years before the death of the client, and continued for about three years, when the action was finally disposed of. If treated as a distinct contract for each item of service and expenditure as they occurred, nearly the whole of the plaintiff’s claim is barred by the statute. If, on the other hand, it is held to be a contract tor continuous labor and services, and is considered as one entire demand, the period of six years had not elapsed, and the plaintiff may recover the whole of his claim. The principle as applied to contracts that are entire is clear. Hall v. Wood, 9 Gray, 60. But it has been questioned whether the services of an attorney, performed at different periods in the progress of a suit, are not to be treated as several and distinct services, for each of which a present liability accrues, and which, therefore, like other cases of distinct services or contracts, are severally subject to the statute of limitations.

This question, although new here, has been the subject of frequent consideration by other tribunals. As stated in Chit. Con. (7th Amer. ed.) 815, the rule of law is, that in the case of an attorney’s bill for prosecuting or defending his client in a suit, the six years required by the statute to bar the claim are, as to the whole bill, to be reckoned from the termination of the action. It is also stated in Angeli on Lim. § 120, that the contract of an attorney to carry on or defend a suit is an entire contract, and therefore the period of limitation runs only from the termination of the suit. See also, to the same effect, 2 Parsons on Con. 373. These positions are well maintained by various cases. See Whitehead v. Lord, 7 Exch. 691; Harris v. Osbourn, 2 Cr. & M. 629; Phillips v. Broadley, 9 Q. B. 744 Rothery v. Munnings, 1 B. & Ad. 15; Martindale v. Falkner, 2 C. B. 706.

The objection is urged against such a rule, that, by holding this to be an entire contract, the attorney is precluded from enforcing any claim for services until the final termination of the suit. To this it has been answered that such would be the effect if nothing has occurred to change the relation of the parties and their duties to each other; but from the nature of this contract it may be terminated previous to the termination of the suit, for a good and sufficient cause, and upon reasonable notice. Hence it has been holden that failure to supply reasonable funds, or any other substantial cause for not further pro ceeding in the case, would justify the attorney in withdrawing from it, and in such a case a present right to enforce his claim for past services would arise, and of course also from that period the statute of limitations would commence running. The cases we have referred to will be found to contain this qualification of the contract between attorney and client in relation to pro fessional services. To the like effect is the case of Rush v. Cavenaugh, 2 Barr, 187.

But where no such notice has been given, and the attorney conducts the suit to its termination, it is to be treated as an entire contract, and the statute of limitations will run only from the termination of the suit. This was the case as respects these services, and the result is that the plaintiff is entitled to recover his entire demand.