By the Court,
Cole, J.
When ■ this case was before us on a former appeal, we decided that the agreement set forth in the complaint was not champertous under our statute ; that so far as the counsel retained by it were concerned, it was not joint but several in its nature, so that a discharge of one of the counsel without cause from the control of the action was a breach of the contract by the defendant, for which he was liable thereon to the counsel discharged; and that the fifteen thousand dollars named in the agreement, which the defendant [694]*694covenanted to pay each one of his counsel in case he settled, compromised, discontinued or took his suit out of court, or from the control of his counsel, was not a penalty, but a stipulated sum agreed to be paid in lieu of damages of an uncer. tain and doubtful character. It is not proposed to enter at this time into a discussion of the points decided on the former appeal. We are fully satisfied with the conclusions which have been already announced upon the questions submitted, and if we were not, clearly those points are not now open for review. For, so far as this cause is concerned, they have become res adjudicatce, and could not now be reversed or departed from without a violation of well established principles of law.
We thought it best to make these observations for the purpose of relieving ourselves from the necessity of particularly considering some questions discussed on the argument by the counsel for the appellant, but which, for the reason just stated, cannot arise on this appeal.
Because the relation of solicitor and client existed when the contract sued on was entered into, it is claimed that the court should scrutinize its stipulations with the utmost rigor, and if there is anything harsh or inequitable in the contract, or suspicious in the time and manner of its execution, should refuse to sustain an action upon it. Any contract with or security given by the client to the solicitor, it is said, is regarded with suspicion, and when advantageous to the solicitor, the presumption is that the transaction is unfair, and the onus of proving its fairness is upon the solicitor. Applying this wholesome rule of law to the case, there is no ground for holding that the contract should be avoided because the responden t abused his relation as counsel or solicitor, and obtained an undue advantage in consequence of the confidence reposed in him by his client. There is nothing about the contract when intrinsically considered, or in the circumstances attending'its execution, which will justify the inference that the respondent used any influence to induce his client to enter into this [695]*695contract, or that be surprised or overreached biin in any way by superior diligence or ability. On tbe contrary, it does most satisfactorily appear in the case, that tbe respondent was not over anxious to enter into tbe contract in tbe first instance, and, even if we assume, wbat is not very clearly shown by tbe evidence, that he drew tbe contract, still his client bad full opportunity to consider it in all its bearings before be executed it. That client was a man of intelligence and discretion, a member of tbe bar of a neighboring state, and fully qualified to guard bis own interests. He bad commenced a litigation which, it was clear to all, would be tedious, difficult and expensive. The amount of bis recovery, even if successful, was a matter of doubt and uncertainty. He was poor and unable to take tbe whole risk and hazard of the litigation. Ho therefore thought best to enter into a contract to pay his counsel a given sum only in tbe event he was successful in the litigation, and in case ten per cent, on the value recovered should exceed the sum of ten thousand dollars, then he was to pay each counsel such additional sum, as with five thousand dollars to be paid each should make an amount equal to ten per cent, of the value recovered. This contract for contingent compensation was deliberately entered into by tbe parties, and we are unable to say, all things considered, that it was not most advantageous to the appellant. True, he agreed, in case he took his cause from the control of either counsel, to pay them the sum of fifteen thousand dollars each.’ It is said that this amount is unreasonable, and out of all proportion to the value of the services rendered. Assuming, for the purposes of the argument, that the appellant entered into an improvident stipulation upon this point, yet certainly he could save himself harmless upon it by simply keeping, in good faith, the contract he had made. He was under no obligation — it does not appear that he was under any necessity — to discharge the respondent from his retainer. Whether the respondent waived or lost any right growing out of the breach of the contract, in [696]*696consequence of the advice he gave his client when Mr. Carpenter refused to hold any further consultation with him out of 'court in regard to the cause they were prosecuting, will be considered in another part of this opinion. We are now considering whether there is anything in the contract itself, or in the circumstances under which it was made, which shows that the respondent abused his relation to secure an undue advantage-over his client. And we must say that we see nothing whatever in the transaction which shows that a court should refuse to- enforce any condition of the contract upon that ground.
It is further claimed that the evidence fails to show that the suit has been taken from the control of the respondent as counsel, and it is argued that his relation to the cause could only be terminated by an order of court, unless Mr. Ryan saw fit to withdraw from it of his own accord. Whether, indeed, as a general rule, an order of court is necessary to terminate the relation of an attorney, solicitor or counsel to a cause pending in court, we shall not now stop to enquire, since we are fully satisfied that the suit was taken from the control of the respondent, and he discharged from employment therein, within the spirit and meaning of the contract. In the letter of October 27th, 1861, which the appellant addressed the respondent, the suit is taken from the control of the latter, in language as unequivocal as it well can be. For he says in that letter, after speaking of his inability to change the purpose of Mr. Carpenter to have no further-consultation with the respondent in regard to -the suit out of court; of- the advice which the respondent had-given him in view of this position of Mr. Carpenter ; of the importance of the suit, to him, and the familiarity of Mr. Carpenter with the facts and details of it: “I am forced from your instructions so faithfully and disinterestedly given, and from the stand taken by Mr. Carpenter, to ask you to -take no further part in the case, but to leave it to -me and Mr. Carpenter.” This distinct and pointed request that [697]*697the respondent take no farther part in the conduct of the cause, was certainly taking it from his control, if it was in the power of the appellant to accomplish that object. It must be construed as having the effect of terminating the respondent’s connection with the cause, within the meaning of the contract, and of absolutely discharging him from his retainer therein.
It is further insisted' that the breach of the contract was not proven as alleged; that the complaint averred that the suit was taken from the control of the respondent and, Carpenter (following the precise language of the contract), while the proof showed that it was only taken from the control of the respondent.
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By the Court,
Cole, J.
When ■ this case was before us on a former appeal, we decided that the agreement set forth in the complaint was not champertous under our statute ; that so far as the counsel retained by it were concerned, it was not joint but several in its nature, so that a discharge of one of the counsel without cause from the control of the action was a breach of the contract by the defendant, for which he was liable thereon to the counsel discharged; and that the fifteen thousand dollars named in the agreement, which the defendant [694]*694covenanted to pay each one of his counsel in case he settled, compromised, discontinued or took his suit out of court, or from the control of his counsel, was not a penalty, but a stipulated sum agreed to be paid in lieu of damages of an uncer. tain and doubtful character. It is not proposed to enter at this time into a discussion of the points decided on the former appeal. We are fully satisfied with the conclusions which have been already announced upon the questions submitted, and if we were not, clearly those points are not now open for review. For, so far as this cause is concerned, they have become res adjudicatce, and could not now be reversed or departed from without a violation of well established principles of law.
We thought it best to make these observations for the purpose of relieving ourselves from the necessity of particularly considering some questions discussed on the argument by the counsel for the appellant, but which, for the reason just stated, cannot arise on this appeal.
Because the relation of solicitor and client existed when the contract sued on was entered into, it is claimed that the court should scrutinize its stipulations with the utmost rigor, and if there is anything harsh or inequitable in the contract, or suspicious in the time and manner of its execution, should refuse to sustain an action upon it. Any contract with or security given by the client to the solicitor, it is said, is regarded with suspicion, and when advantageous to the solicitor, the presumption is that the transaction is unfair, and the onus of proving its fairness is upon the solicitor. Applying this wholesome rule of law to the case, there is no ground for holding that the contract should be avoided because the responden t abused his relation as counsel or solicitor, and obtained an undue advantage in consequence of the confidence reposed in him by his client. There is nothing about the contract when intrinsically considered, or in the circumstances attending'its execution, which will justify the inference that the respondent used any influence to induce his client to enter into this [695]*695contract, or that be surprised or overreached biin in any way by superior diligence or ability. On tbe contrary, it does most satisfactorily appear in the case, that tbe respondent was not over anxious to enter into tbe contract in tbe first instance, and, even if we assume, wbat is not very clearly shown by tbe evidence, that he drew tbe contract, still his client bad full opportunity to consider it in all its bearings before be executed it. That client was a man of intelligence and discretion, a member of tbe bar of a neighboring state, and fully qualified to guard bis own interests. He bad commenced a litigation which, it was clear to all, would be tedious, difficult and expensive. The amount of bis recovery, even if successful, was a matter of doubt and uncertainty. He was poor and unable to take tbe whole risk and hazard of the litigation. Ho therefore thought best to enter into a contract to pay his counsel a given sum only in tbe event he was successful in the litigation, and in case ten per cent, on the value recovered should exceed the sum of ten thousand dollars, then he was to pay each counsel such additional sum, as with five thousand dollars to be paid each should make an amount equal to ten per cent, of the value recovered. This contract for contingent compensation was deliberately entered into by tbe parties, and we are unable to say, all things considered, that it was not most advantageous to the appellant. True, he agreed, in case he took his cause from the control of either counsel, to pay them the sum of fifteen thousand dollars each.’ It is said that this amount is unreasonable, and out of all proportion to the value of the services rendered. Assuming, for the purposes of the argument, that the appellant entered into an improvident stipulation upon this point, yet certainly he could save himself harmless upon it by simply keeping, in good faith, the contract he had made. He was under no obligation — it does not appear that he was under any necessity — to discharge the respondent from his retainer. Whether the respondent waived or lost any right growing out of the breach of the contract, in [696]*696consequence of the advice he gave his client when Mr. Carpenter refused to hold any further consultation with him out of 'court in regard to the cause they were prosecuting, will be considered in another part of this opinion. We are now considering whether there is anything in the contract itself, or in the circumstances under which it was made, which shows that the respondent abused his relation to secure an undue advantage-over his client. And we must say that we see nothing whatever in the transaction which shows that a court should refuse to- enforce any condition of the contract upon that ground.
It is further claimed that the evidence fails to show that the suit has been taken from the control of the respondent as counsel, and it is argued that his relation to the cause could only be terminated by an order of court, unless Mr. Ryan saw fit to withdraw from it of his own accord. Whether, indeed, as a general rule, an order of court is necessary to terminate the relation of an attorney, solicitor or counsel to a cause pending in court, we shall not now stop to enquire, since we are fully satisfied that the suit was taken from the control of the respondent, and he discharged from employment therein, within the spirit and meaning of the contract. In the letter of October 27th, 1861, which the appellant addressed the respondent, the suit is taken from the control of the latter, in language as unequivocal as it well can be. For he says in that letter, after speaking of his inability to change the purpose of Mr. Carpenter to have no further-consultation with the respondent in regard to -the suit out of court; of- the advice which the respondent had-given him in view of this position of Mr. Carpenter ; of the importance of the suit, to him, and the familiarity of Mr. Carpenter with the facts and details of it: “I am forced from your instructions so faithfully and disinterestedly given, and from the stand taken by Mr. Carpenter, to ask you to -take no further part in the case, but to leave it to -me and Mr. Carpenter.” This distinct and pointed request that [697]*697the respondent take no farther part in the conduct of the cause, was certainly taking it from his control, if it was in the power of the appellant to accomplish that object. It must be construed as having the effect of terminating the respondent’s connection with the cause, within the meaning of the contract, and of absolutely discharging him from his retainer therein.
It is further insisted' that the breach of the contract was not proven as alleged; that the complaint averred that the suit was taken from the control of the respondent and, Carpenter (following the precise language of the contract), while the proof showed that it was only taken from the control of the respondent. Assuming that the breach should properly have been alleged in the disjunctive instead of the conjunctive, yet we think it is too late to raise that question for the first time here. Had the objection been taken in the court below, it would have been the clear duty of the court to amend the complaint so as to make its allegations conform to the evidence offered on the trial. The question whether the contract was several in its nature, and whether the discharge of the respondent from retainer and employment in the suit constituted a breach of it, had already been decided in the affirmative by this court. The objection that the allegata and probata do not agree in this particular, is an exceedingly technical objection, does not effect the merit of the controversy, and ought not to prevail here at this stage of the cause, when it was not raised in the court below, where it might have been obviated by an amendment, if necessary.
Again, it is claimed and insisted that what took place between the parties at and about the time the respondent was discharged from his retainer, amounted to a waiver and rescinding of the contract, and authorized the appellant to conclude that if he elected.to discharge the respondent he would not be required to pay the fifteen thousand dollars, but might settle for the professional services rendered upon the quantum meruit. We do not think the evidence sustains any such position. We [698]*698shall not, however, go into any lengthy discussion of the testimony bearing upon this point, but shall content ourselves with stating briefly the conclusion at which we arrived upon it. According to our view of the testimony, the respondent neither by word or deed gave the appellant any reason to believe that he would not or did not intend to insist upon the provisions of the contract in the event he was dismissed from the suit. When shown the letter which Mr. Carpenter had addressed the appellant, in which Mr. Carpenter, for reasons which he gave, stated that he would have no further consultation with the respondent out of court in the case of Martin v. Broolcs, the respondent gave the written advice where he said: “ I advise Mr. Martin that it will be highly dangerous to his interests, if Mr. Carpenter and myself retain our present relations to his case, without constant consultation out of court upon the various questions arising, and the policy to be pursued. I advise Mr. Martin that such refusal, if adhered to, is as much a violation of Mr. Carpenter’s duty under his retainer, as if he refused to appear in the case in court, or to do any other professional service in the case. I advise Mr. Martin that it is essential to his interests either to induce Mr. Carpenter to withdraw his refusal, or dismiss one or other of us, as he may elect, from the case, and employ some other gentleman with whom his remaining counsel can and will consult.” If there was any waiver or rescission of the contract by the respondent, it must be found in the above written advice. And yet there is nothing in this written advice which, under any fair construction, can be said to be a waiver of the provisions of the contract, or the stipulation for the payment of the fifteen thousand dollars liquidated damages. But assuming that the appellant might possibly, on reading the last clause in the above memorandum of advice, have derived the impression that the respondent did not intend to hold him to the contract in the event that he should elect to dismiss him from the suit, yet most certainly every impression of that kind must have been [699]*699fully removed in the subsequent correspondence, and more particularly in his interviews with respondent’s attorneys. For he was there told that if he dismissed the respondent without cause, he would do so subject to the liability to pay the fifteen thousand dollars. But the appellant had no reason — no ground for believing that he would not be held to a rigid accountability on his contract. All the dealings of the respondent with him, even under circumstances of no little delicacy and personal embarrassment, were very plain, direct and unequivocal. There is not the slightest pretense or ground for saying that the respondent misled him by holding out the idea that he was ready to abandon the contract, or that he left him in doubt as to his own views and purposes. He advised the appellant as fully, probably, as any high minded lawyer would do, as to the course he had better pursue, in view of the contingency that Mr. Carpenter should adhere to the position he had assumed. It could hardly be expected, we think, that the respondent should advise his client to dismiss Mr. Carpenter on account of his refusal to hold consultations out of court. He could only give him his honest views as to the necessity of such consultations, and leave the appellant to take such a course in the premises as he might think proper. This, it appears, he did do, candidly and fully. There is, therefore, no ground for saying that the appellant was misled by the respondent in any manner. For the whole case abundantly shows that the latter did nothing, and said nothing, inconsistent with the highest professional honor and fidelity to his client.
These remarks dispose of all the points in the case we deem material or necessary to be noticed.
The judgment of the circuit court is affirmed.