George M. McDonald, Respondent, v. Donato De Vito and Frank S. De Vito, Appellants

George M. McDonald, Respondent, v. Donato De Vito and Frank S. De Vito, Appellants. Fourth Department, March 6, 1907. Attorney and client — action for value of legal services — when direction of verdict error — client not liable when attorney repudiates contract for contingent fee. In an action to recover the value of legal services the value of the services is a question of fact and a direction of a verdict for the plaintiff is error. When in an action by an attorney, to recover the value of services rendered it appears that they were performed under a contract giving him a percentage of the recovery, he is not entitled to recover on a quantum meruit but only under" the contract. When an attorney repudiates a contract for a contingent fee, the client is under no obligation to. proceed with the action, and is not liable for the value of services rendered. Appeal 'by the defendants, Donato Be Yito and another, from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the cleric of .said, county on the 6th day of June, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 5th day of June, 1906, and entered in said clerk’s office, directing the verdict in favor of the plaintiff. William, J¿. Lee and August Merrill, for the appellants. L. W. Southworth, for the respondent. [MAJORITY — Kruse, J.:] Kruse, J.: While the evidence was undisputed that the plaintiff rendered legal services for the defendants at their request, for which the plaintiff, was entitled to recover what they were reasonably worth, if the testimony of the plaintiff is to be taken as true, yet even in that view, the value of the services was a question of fact for the jury; but beyond that the testimony on behalf of the defendants tended to prove that the services were rendered in certain actions under a special contract for which the plaintiff was to receive twenty-five per cent of the recovery. If this agreement was made, as claimed on behalf of the defendants, then the plaintiff was not entitled to recover what the services were reasonably worth, but was necessarily limited by the terms of his contract to twenty-five per cent of the recovery. Itris true that the defendants refused to attend the trial of the actions, but that was after the plaintiff had refused to proceed under the contract as claimed by the defendants, and they had refused to proceed with the actions because of the plaintiff’s repudiation of the contract as claimed by them. If the defendants were right in their contention, they were under no obligation to continue the services of the plaintiff, and had incurred no liability for what he had done. We are clearly of the •opinion that questions of fact were presented by the evidence which required the case to he submitted to the jury, and it was error to direct a verdict for the plaintiff. The judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the event. All concurred, . Judgment and order reversed and new trial ordered, with costs to the appellants to abide the event.