Norris v. Breakwater Co.

84 A. 358, 235 Pa. 358, 1912 Pa. LEXIS 550

• Court: Supreme Court of Pennsylvania
• Decided: March 18, 1912
• Docket: Appeal, No. 3
• Status: Published

Opinion

Pee Cubiam,

The affidavit of defense, deemed insufficient by the court below, is of unpardonable length and teems with irrelevant matter. The appellee is an attorney-at-law, and his claim for professional services is based upon a written agreement with the appellant, dated October 3, 1908. A defense set up in the affidavit is his alleged infidelity to the appellant as his client, but this was held by the court below to be unavailing, because there is an express denial in the affidavit of defense that the appellee had rendered any services whatever to the appellant prior to October 3, 1908, and it could take no advantage of his unfaithfulness to its predecessors. We do not so read the affidavit of defense. The first recital in the agreement is, “Whereas the first party and the company have adjusted and settled all their differences, disputes and controversies and agreed that the company is indebted to the first party in the sum of five thousand and fifty-three and 50-100 ($5,053.50) dollars for services rendered as its attorney to the date hereof.” The execution of this agreement is thus admitted by the appellant: “It is true, as he alleged in the plaintiff’s statement of claim, that the defendant entered into a certain written contract, copy of which is annexed to the plaintiff’s statement of claim, but it is not true as is alleged in the said statement of claim that he, the plaintiff, has well and faithfully rendered, performed and discharged such services for the defendant as were required of him by its board of directors, and has faithfully performed and kept all of the conditions and provisions of said contract as therein provided upon his part to be kept and performed. But on the contrary, the plaintiff has always been inimical and hostile to the interests of the company, in violation of the spirit and intent of said agreement.” The averment which the court below seems to have misunderstood is not that the appellee had not “rendered any services whatever to The Breakwater Company” prior to the date of the agreement, but is, “Said agreement was based upon the fact that the said Edward W. Norris had rendered services to the defendant when in truth and fact he rendered no service whatsoever to the defendant, but all his actions had been to the detriment of the said defendant, and he had rendered no services in its behalf.” This, taken in connection with the agreement and the other quoted averment in the affidavit of defense, does not necessarily mean that the appellee had not been counsel for appellant prior to October 3, 1908, but is entirely consistent with such a relation, in which, however, he may have failed to faithfully serve his clients. There is a sufficient averment of professional unfaithfulness in the affidavit of defense to send the case to a jury on the question of the right of the appellee to recover. It is not necessary that we, at this time, pass upon his alleged duress of the appellant in procuring the agreement from it.

Judgment reversed and record remitted with a procedendo.