Rooker v. Bruce

90 N.E. 86, 45 Ind. App. 57, 1909 Ind. App. LEXIS 262

Opinion

Rabb. J.

Appellant brings this action to recover attorney ’s fees claimed to be due to him under a contract averred to have been entered into between the parties.

Appellee filed a counterclaim, charging the appellant with negligence in the management and conduct of the litigation, for his services in conducting which he seeks a recovery.

Appellant’s motion to strike out this counterclaim and his demurrer thereto were overruled, as were his objections to evidence offered to sustain the same, and these rulings present the only questions for our determination.

It is the theory of the appellant that negligence being a tort, damages arising therefrom cannot be made the subject-matter of a counterclaim or set-off to an action founded on contract.

1. It is true that negligence is a tort, but it may also constitute a breach of contract in certain cases. A common carrier for instance, binds himself to exercise due care in tbe carriage of passengers and goods entrusted to him, and his failure to do so is not only a tort' but also a breach of his contract, and for such breach he may be sued at the election of the injured party, either in tort or on the contract.

2. An attorney who undertakes to perform services for a client in the conduct of litigation, impliedly contracts to exercise due care, skill and knowledge of the law in the conduct of his client’s business, and his negligence in that regard is a breach of his contract, and a proper subject for counterclaim in any action he may bring to recover for his professional services.

Judgment affirmed.