COMPENSATION RECOVERED FOR LEGAL SERVICES.

Court of Appeals for Hamilton County.

#### Albert T. Brown v. Martin G. Bruner.

Decided, February 3, 1919.

*Champerty and Maintenance*— Reduction *of Street Assessment Secured*— Property *Owner Refuses to Share loith Attorney the Amount ■*— Quantum *Meruit Recovery May he Had, When.*

1. Where the contract of employment between attorney and client is void for champerty, but not otherwise illegal, the attorney is entitled to reasonable compensation for his services.

2. Suit for money was brought by an. attorney on a contract with a client, and was dismissed on motion of the defendant, on the pleadings for champerty in said contract. *Held:*Such dismissal was not -a decision on the merits and is not a bar to a second suit brought *in quantum meruit*for the services performed under the contract.

*G. A. Groom*and *E. S. Aston,*for plaintiff in error.

*E. F. Alexander, amicus curiae.*

Shohl, J.

Martin G-. Bruner employed Albert T. Brown, an attorney of Cincinnati, to secure a reduction by suit or otherwise of the assessment levied by the city of Cincinnati against his property on Cass avenue. Under the terms of that agreement Brown was to be paid one-half of the amount saved on the assessment, and was to bear all expenses involved in the litigation. An action was brought and a reduction of the assessment was secured. After a payment of ten dollars on account Bruner refused to make further payments, and Brown brought suit against him on the contract in the municipal court of Cincinnati. The defendant there secured a judgment on the pleadings from which no error proceedings were taken. -Between the parties, therefore, it is settled that the contract was illegal. Brown then brought another suit in the municipal court for services rendered asking judg*434ment for the reasonable value of his services, alleging that they were worth $88.97, which was the exact amount to which he was entitled had the contract been valid. Credit was given for the ten dollar payment. The 'defendant answered alleging that the services were performed under a contract adjudged to have been illegal. The municipal court decided in favor of the defendant, and the court of common pleas affirmed that decision.

The dismissal of the original suit does not bar the new action. It was not a decision on the merits and amounted to no more than a judgment on demurrer to the petition. *Moore*v. Dunn, 41 O. S., 62; *Rafferty*v. *Toledo Traction*Co., 1 C.C.(N.S.), 538.

If the contract was champertous there is no doubt that the courts will not enforce it. *Davy*v. *Insurance Company,*78 O. S., 256. It does not follow, however, that the plaintiff is entirely without remedy. The law of champerty and maintenance had its origin in England, where influential persons to whom rights of action were transferred in order to obtain their support and favor, harassed society and stirred up strife and litigation. ‘ ‘ The power of'the nobles became mighty in corrupting the fountains of justice and subverting the freedom and independence of the judicial tribunals. It was to remedy these evils that the law of champerty and maintenance was introduced,” *Hovey*v. *Hobson,*51 Maine, 62, 64. Under modern conditions the reason for the old rule has largely disappeared. The general tendency is toward a relaxation of the ancient doctrines relating to this subject. 11 Corpus Juris, 236.

In many jurisdictions where the services rendered by an attorney are not illegal, either on account of the nature of the service or the circumstances under which it is rendered, the attorney may recover in *quantum meruit,*notwithstanding the invalidity of the contract under which the services were rendered. *City of Rochester*v. *Campbell,*184 Ind., 421, 425.

Cases have been cited supporting the opposite view. Such decisions as *Roller*v. *Murray,*112 Va., 780 and *Barngrover*v. *Pettigrew,*128 Iowa, 532, arise in states where' such a contract for services was criminal. The case of *Moreland*v. *Devenney,*72 Kans. 471, is in point but we regard it as opposed to the better *435view. The authorities are collected in 11 Corpus Juris, 269, and in the notes in 2 L. R. A. (N.S.), 263, and 39 L. R. A. (N.S.), 1202.

There is nothing in good morals that requires Bruner to have the work done for nothing. He knew just what the services were to be and he got results that were valuable to him. We adopt the rule established by the weight of the authoritative decisions, that although an agreement between an attorney and a client is void for champerty, if it is not otherwise illegal the attorney is nevertheless entitled to reasonable compensation for services rendered. The judgment will be reversed.

Jones, P. J., concurs; Hamilton, J., dissents.

Hamilton, J.

(^dissenting.)

I dissent from the judgment in this case for the following reasons :

Plaintiff first brought suit in the'municipal court of Cincinnati on a written contract. The petition set up the contract and the plaintiff relied thereon for recovery. The contract provided for services as attorney to secure a reduction of street assessments, and among other things provided for the payment to the attorney for his services, "one-half of the amount saved on said assessment, said attorney to bear all expenses involved in the said litigation. ’ ’

The reduction on the assessment was procured, and the attorney brought suit to recover under this provision of the contract.

The defendant in this ease moved to dismiss the cause, and upon consideration the municipal court sustained the motion and dismissed the cause at cost of plaintiff. 'No further proceedings were taken in that case by plaintiff, and that judgment stands unmodified, unreversed and is a binding judgment on the plaintiff. .

Thereupon the plaintiff filed his second suit, which is the case under consideration, in *quantum meruit*for the same services admittedly rendered under the contract sued upon in the first *436case. I am unable to see how this can be upheld. The subject-matter of the suit was the written contract upon which plaintiff relied for recovery. He elected to pursue that course and should be bound by that judgment.

In the case of the *C. L. & N. Ry. Co.*v. *Pierson,*18 C. C., 392, the syllabus is:

> “A suit can not be maintained upon an express agreement which the plaintiff predicates upon an adjudication in a previous ease, where recovery was sought upon the same cause of action, but covering a different period of time, the former case bein in *quantum meruit*based upon an implied contract.”

This ease is simply the reverse of the instant case. In the ease under consideration suit' was brought on the express contract and judgment rendered, and he should not now be permitted to pursue his action in another suit in *quantwm meruit.*

In the case of *Buchwalter*v. *Clendenning,*17 C. C. (N.S.), 455, the court holds:

> “A plaintiff against whom judgment has been rendered is es-topped from prosecuting a second action against the same defendant for the.same subject-matter by merely changing the form of the suit.”

In the case at bar litigation was carried on wholly by the parties to this action. The parties in this action who are interested are the same, and the subject of the controversy is the same. The only difference is in the form of the action. Plaintiff having elected to bring this action in the manner he did in the first suit, and it having been decided against him, should be estopped from prosecuting another action of the same subject-matter in another form. Under this view of the case any discussion as to the champertous feature of the contract becomes merely academic.