6:30 BEAUMONT V. J. H. HAMLEN & SON. [190 BEAUMONT V. J. H. HAMLEN & SON. • 4-3780 Opinion delivered March 25, 1935. 1. ATTORNEY AND CLIENT-BREACH OF CON TRACT-COM PENSATION.-- An attorney who, without just cause abandons his client before • the suit in which he has been retained has been conducted to its termination, or commits a material breach of his contract of employment, forfeits, his right to compensation. 2. ATTORNEY AND CLIENT-RiGHT TO COMPENSATION-JURY QUESTION. —Where the evidence tended to show that an attorney failed to pay material witnesses their attendance fees and mileage while attending the trial in the Federal court 'as agreed, and therefore the witnesses would , not attend the subsequent trial of the case in the State court, the question whether the attorney abandoned the client'S case or committed a material breach of the contract of' employment ' held for the jury. 3. APPEAL AND ERROR-NECESSITY FOR SETTING FORTH ENTIRE CHARGE. —Alleged errors in giving certain instructions, not alleged to' be inherently, defective, will not be considered on appeal where not all of the instructions given, were abstracted as required by rule 9. Appeal from Pulaski Circuit Court, Second Division ; Richard M. Mann, Judge; affirmed. Beaumont & Beaumont, Price Shofner and T. N: Robertson, for 'appellants.' Sam T. & Tom . Poe, for appellee: JOHNSON, C: J. This action was institUted by appellants, a*firni of lawyers located in Little Rock, Arkansas, against appellee, a foreign corporation, to recover an attorney's fee alleged to have been earned in a certain cause of action between one B. S. Biggs 'and ,appellee. The contract of employment between appellantS and Biggs provided that appellant should receiVe 50 per cent. of whatever sum was recovered for personal injuries sustained by Biggs bY or through the negligence of appellee. Appellants allege that, in pursuance of the contract of employment as attorneys, they filed suit for :Biggs against appellee in the circuit court of Pulaski County, and, without the knowledge or consent of appellants Biggs com-. promised and settled said cause of action prior to a trial thereof. Appellee answered appellants' complaint by
BEAUMONT V. J. H. HAMLEN & SON. 631 general denial. Subsequently an • amended answer was filed, alleging that appellants were discharged a . s attorneys by Biggs for cause. The testimony adduced upon trial to a jury tended to establish on behalf of 'appellants that they had a 'contract with B. S. Biggs tO receive 50 per cent. of whatever sum that might be recoVered against appellee for personal injury.received by Biggs bY or through the•negligent act of appellee ; that, in• pursuance of said contract of employment, a complaint was ffied by appellants as attorneys for Biggs against appellee in the Federal .District Court . . for the eastern district of Arkansas ; that upon trial this cause resulted in a mistrial; that stbsequently a hew suit was filed by aPpellants as attorneys for Biggs in the Pulaski Circuit Court ; that this cause was set for trial on May 16, 1933, but that appellants were discharged as attorneys by Biggs on May 12, 1933 ; that, prior to their 'discharge as attorneys, they had furnished , money for certain expenses of Biggs and otherwise in preparation.of said cause for trial. Appellants denied any lack-of diligence on• their part in the preparation or • presenta, tions of Biggs' suit against appellee, and they also denied doing or failing to do any act which would authorize their discharge as attorneys. On behalf of appellee, the testimony tended' to establish the following facts : That appellants agreed, as a part of their contract of employment .. by Biggs, to assume and pay all expenses incident to procuring witnesses in prep-. aration for trial and to pay the' eXpériseS . of • sitch•wit--- nesSes while in attendance upon the court during the trial, • and to prOcure 'the 'attendance upon trial of all necessary witnesSes. ; that appellants . induced the attendance of cer, fain witnesses upon the trial of said canse in the Federal District Court, but had- neglected,Tailed and refused. to pay said witnesses' attendance fees or mileage ; 'that, for the reasons stated,' said necessary . 'witnesses had refused tO attend npon •the trial Pending in the Pulaski Circuit -Court. For these and' other ' reasons 'assigned Biggs discharged appellants AS. atforneys. • • ; Subsequent to the discharge Of appellants as attor-. neys for Biggs, , a settlement was effected bet • we ,. en Biggs .
632 . BEAITMONT v. .11 H. HAMILEN & SON. [190 and appellee for the injuries complained of in the two suits heretofore discussed, and Biggs received $500 for his alleged injuries, and the attorneys then representing Biggs received $415 as their fee. This will stiffice to show the trend of the testimony produced in said trial. The law is well settled in this and most other juris-dictions that, if an attorney, without just cause, abandons his client before the proceedings for which he was retained has been conducted to its termination, or if such attorney commits a material breach of his contract of employment, he thereby forfeits all right to Compensation. The general rule is stated in 2 R.-C. L., § 132; page 1049, as follows : "If an attorney, without just cause, abandons his client before the proceeding for which he Was retained has been Conducted to its termination, he forfeits all right to payment for any services which he has rendered. The contract being entire, he must perform it entirely in order to earn his compensation, and he is in the same position as any person who is engaged in rendering an entire service, who must show full performance before he can recover the stipulated compensation:" The testimony adduced by appellee tended to show that appellants had failed or refused to pay material witnesses their attendance fee or mileage while attending Biggs' case in the Federal District Court, and for this reason said witnesses would not voluntarily attend upon the- pending trial iii the Pulaski Circuit Court which was set for May 16, 1933. The jury was fully warranted in concluding from this testimony that appellants had abandoned Biggs' case, or that they had committed a material breach of their special contract of employment.. -At. any rate, this testimony warranted the submission of these issues of fact to the jury. for their consideration and-judgment. Complaint is also made that the court erred in (riving, and giving as modified, certain instructions. These alleged errors cannot be considered by us. All the instructions given by the trial court are not abstracted as required by rule 9 of this court, therefore we must conclusively presume that the cause was submitted to the jury by the trial court under cOrrect declarations of law, there
ARR.] 633 - being no contentions that any of said instructions were inherently defective: St. M. & S. Ry. Co. V. Day, 86 Ark. 104, 110 S. W. 220 ; St. L., 1. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S. W. 665 ; Arkansas Ins. Co. v. Royal, 102 Ark. 95, 143 S. W. 596; and Wallace v. St. L., I. M. & S. Ry. Co., 83 Ark. 356, 103 S. W. 747. No reversible error appearing, the judgment is affirmed.
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