G.R. No. 19205. February 13, 1923

The plaintiff in this case, Don Eduardo Reyes Cristobal, sues to recover an
attorney’s fee, claimed to be due from the defendant, Jose M. Ocson, by virtue
of a written contract alleged to have been executed by the parties on September
20, 1921. Upon hearing the cause, his Honor, the trial judge, awarded to the
plaintiff the sum of P6,500, with lawful interest from November 14, 1921, and
with costs. From this judgment the defendant appealed.

It appears that shortly prior to the date of the making of the contract upon
which this action is founded, the defendant’s father, Don Lucio Ocson, a
resident of the City of Manila, died intestate, leaving the defendant as his
only son and heir; and it became desirable for the defendant to take out letters
of administration, in order that the estate might be settled according to law.
Having need of a lawyer to render advice and conduct the necessary proceedings
through the courts, the defendant approached the plaintiff, with a view to
obtaining: the professional services of the latter; and a written contract of
employment was drawn up between the two in due form.

By this contract the plaintiff agreed to take upon himself as attorney the
duty of conducting the intestate proceedings in the estate of Don Lucio Ocson,
deceased, to a finality, including the effecting of the final partition, and the
rendering of any professional service in the Supreme Court that might become
necessary in case of an appeal. In consideration of the services thus to be
rendered, the defendant agreed to pay to the plaintiff a fee equal to ten per
cent (10%) of the amount which should be received by the defendant as heir in
the intestacy aforesaid.

To this contract was appended a special stipulation, which we quote in the
precise words used in the contract itself, namely, “With the understanding,
nevertheless, that if by the desire and will of the first party [Ocson] the
second party [Cristobal] should be relieved of his services as attorney before
the division, the fee shall be as stipulated and agreed in the present contract
and thenceforth shall be deemed due and payable.”

The plaintiff says that this contract was duly signed on the date shown
therein by both parties in the presence of two subscribing witnesses, and so the
trial judge found, notwithstanding the denial of this fact by the defendant.
Upon this point we assume, without attempting to go into details, that the
contract was made as stated.

It appears, however, according to the plaintiff’s version of the matter, that
the defendant repudiated this agreement within two or three days after it was
made and employed another attorney to conduct the proceedings in the intestacy
to which reference has been made. Upon this the plaintiff instituted the present
action to compel the defendant to pay to the plaintiff a sum equivalent to ten
per cent (10%) of the amount which would pertain to the defendant as his share
of his father’s estate.

Upon the evidence before him the trial judge found that the share of the
defendant in his father’s estate was of the approximate value of P65,000; and
upon this basis he estimated the plaintiff’s fee at P6,500, as already stated,
assuming, of course, that the stipulation referred to above was valid.

As the case presents itself in this court, a question of law arises which we
consider fatal to the plaintiff’s effort to recover the stipulated fee.

In section 29 of the Code of Civil Procedure it is declared that a lawyer
shall be entitled to have and recover from his client no more than a
reasonable compensation for the services rendered. (Italics ours.) The
purpose of this provision, we may perhaps assume, is primarily to indicate that
the compensation of attorneys shall not rest upon a purely honorary basis; but
said provision also undeniably prohibits the courts from allowing more as an
attorney’s fee in any case than reasonable compensation for the services
rendered. This proposition is, however, modified by the closing sentence in the
same section, to the effect that when the contract between the lawyer and client
is reduced to writing, this shall control as to the amount of the fee to be
allowed, if found by the court not to be unconscionable or unreasonable.

Section 32 of the same Code declares that a client may at any time dismiss
his lawyer or substitute another in his place. This means that the client can
dismiss his lawyer at any time with or without cause; and every lawyer who
assumes to render service in a professional capacity in any particular case does
so in full knowledge of the fact that his services may be dispensed with at any
time. It follows that the dismissal of an attorney by a client cannot be treated
as the basis of legal liability, so far as concerns the mere act of dismissal.
In such a case any idea of breach of contract on the part of the client is
wholly out of the question. Any loss occasioned by such act is damnum absque
injuria.

In the case before us the stipulation upon which the action is based was
reduced to writing; but this circumstance does not abridge the right of the
client to dismiss his attorney, nor does it authorize the court to allow an
attorney’s fee in excess of reasonable compensation for the services rendered.
The closing sentence of section 29, with reference to written contracts, must be
construed in pari materia with the related provisions.

Now, upon examination of the stipulation which is the subject of action here,
it will be noted that it. attempts to save to the attorney the full fee
contracted to be paid for the entire service, however trivial may be the value
of the services rendered before the dismissal of the attorney; and if given the
effect intended by the draftsman when said stipulation was inserted in the
contract, it will secure to the plaintiff precisely the same benefit that would
have accrued to him from a plain breach of the contract, if that conception of
liability were here admissible. Obviously said stipulation imposes a condition
upon the exercise of a right which the law unconditionally gives to the
client.

It has been suggested that the purpose of the provision in section 32, to the
effect that the client may at any time dismiss his attorney or substitute
another in his place, was intended merely to recognize the power of the client
to terminate the authority of his attorney, leaving the effects of the violation
of the contract, in case the dismissal is unjustified, to be determined by the
same considerations that prevail in other cases of breach of contract. With this
we are unable to agree. The provision in our opinion not only recognizes the
power to dismiss, but gives the client the clear right to do so without thereby
.incurring any legal liability whatever.

Under the doctrine prevailing in the United States, attorney’s fees have
never been considered to be upon a purely honorary basis; and it is there
universally held that even in the absence of special contract, they are
entitled, like any body else, to reasonable compensation for the services
rendered. Nevertheless, it is also recognized that the relation between attorney
and client is one of trust and confidence and this impresses certain features
upon contracts between the two which are peculiar. This idea is evidently at the
basis of the provisions in our Code of Civil Procedure to which we have
referred.

Upon the case before us, it is our opinion that, under the conditions stated,
the stipulation upon which the plaintiff relies is unavailing; and he is
remitted to his right to recover strictly upon a quantum meruit to the
extent of the value of the services rendered, as in Montinola vs.
Hofileña (13 Phil., 339).

A decision from the Court of Appeals of the State of New York rendered in the
case of Martin vs. Camp (219 N. Y., 170; L. R. A. [1917F], 402), fully
sustains the conclusion reached by us in this case. In that State there does not
appear to be in force any express statutory provision giving the client the
right to dismiss his attorney; but the highest court of that State has for a
hundred years maintained the proposition that the client has such right, and in
this connection, in the case referred to, the Court of Appeals said:

“That the client may at any time for any reason or without any reason
discharge his attorney is a firmly established rule which springs from the
personal and confidential nature of the relation which such a contract of
employment calls into existence. If the client has the right to terminate the
relationship of attorney and client at anytime without cause, it follows as a
corollary that the client cannot be compelled to pay damages for exercising a
right which is an implied condition of the contract. If in such a case the
client can be compelled to pay damages to his attorney for the breach of the
contract, the contract under which a client employs an attorney would not differ
from the ordinary contract of employment. In such a case the attorney may
recover the reasonable value of the services which he has rendered but he cannot
recover for damages for the breach of contract. The discharge of the attorney by
his client does not constitute a breach of the contract, because it is a term of
such contract, implied from the peculiar relationship which the contract calls
into existence, that the client may terminate the contract at any time with or
without cause.”

Again says the court: “* * * The rule secures to the attorney the right to
recover the reasonable value of the services which he has rendered, and is well
calculated to promote public confidence in the members of an honorable
profession whose relation to their clients is personal and confidential. What
has been said declaratory of the rule that the attorney is limited to a recovery
upon a quantum meruit does not relate to a case where the attorney in
entering into such a contract has changed his position or incurred expense, or
to a case where an attorney is employed under a general retainer for a fixed
period to perform legal services in relation to matters that may arise during
the period of the contract. The plaintiff’s right of action is limited to a
recovery for the reasonable value of services rendered.”

We are aware that a number of cases can be cited from American courts where
actions for breach of contract have been successfully maintained by attorneys
against clients for unjustifiable discharge from service (6 C. J., 724, note
14), but upon examining these cases no reference will be found to any statute or
rule of law like that contained in section 32 of our Code of Civil Procedure,
recognizing the right of the client to dismiss the attorney; and we believe the
rule applicable in this jurisdiction must be substantially the same as that
which prevails in the State of New York. Of course where legal services are
completely rendered by an attorney as per written contract, the provision
contained in section 29 of our Code of Civil Procedure to the effect that the
contract shall govern as to the amount of the recovery will have full
effect.

Upon examining the record in the case before us, we find that the plaintiff,
in reliance upon the contract in question, prepared a petition for letters of
administration to be issued in favor of the defendant; and in connection with
the preparation of this petition, it was necessary for him to make certain
inquiries and secure accurate legal data relative to the death of the decedent.
He is undoubtedly entitled to be compensated for this service; and upon taking
into consideration the importance of the subject matter and other relevant
considerations appropriate to the matter, the majority of the Justices who
participate in this decision are of the opinion that the plaintiff should be
allowed a fee of P200.

The judgment will accordingly be thus modified, and recovery will be entered
in favor of the plaintiff for the amount of P200, with interest from November
14, 1921. So ordered, without special pronouncement as to costs.

Araullo,
C.J., Avanceña, Villamor, Ostrand, and Romualdez, JJ.,
concur.
Johns, J., concurs in the result only.

---

MALCOLM, J.:

I am unable to agree with the majority opinion in which the rule is announced
that where a written contract for services is entered into by an attorney-at-law
and a client, and where the attorney is discharged without cause before the work
which he was employed to do is performed, there is no breach of contract. I take
the stand, which I believe is fortified by the explicit provisions of our Code
of Civil Procedure, and by the majority doctrine of other jurisdictions, that
while a client may terminate the authority of the attorney to represent him, yet
if there be a contract, he has breached such contract in doing so, and must
respond for the breach. So this dissent.

I agree with the majority decision when it finds as a fact that a contract
was duly entered into by Eduardo Reyes Cristobal, attorney-at-law, and Jose M.
Ocson, whereby the latter agreed to pay the attorney a fee equal to 10 per cent
of the amount which should be received by the client as heir in intestate
proceedings, an amount which the trial judge fixed at P6,500. I agree, further,
that if there be no written contract of services, which, however, exists in this
case, a lawyer is only entitled to have and recover from his client a reasonable
compensation for the services rendered, all as provided in the first portion of
section 29 of the Code of Civil Procedure. I agree, finally, that a client may,
at any time, dismiss his lawyer with or without cause, as authorized by section
32 of the Code of Civil Procedure, and as sanctioned by the jurisprudence. But
having conceded all this, I invite particular attention to the last sentence of
section 29 of the Code of Civil Procedure, reading: “A written contract for,
services shall control the amount of recovery if found by the court not to be
unconscionable or unreasonable.”

The question which the courts do not uniformly answer is whether there is a
breach of contract where the attorney has been discharged without cause before
the work which he was employed to do is performed. Turning to the authorities,
we find the author of the article Attorneys-at-Law in 2 Ruling Case Law, p.
1048, stating the rule in the sense in which it appears in this dissenting
opinion. It is there said:

“While, as has been already seen, a client unquestionably has the right to
terminate the relationship between himself and his attorney, yet where an
attorney is discharged by the client, or is otherwise wrongfully prevented from
performing the professional duties for which he was employed, without fault on
the part of the attorney, the latter is entitled to compensation. * * * Where
the contract is broken by the client without the fault of the attorney, the
latter may recover on a quantum meruit for the reasonable value of his
services, or he may sue on the contract and recover damages for its
breach. The client, by wrongfully preventing the performance of the acts
which entitled the attorney to the specific compensation, becomes liable in
damages in such amount with interest from the time it became due. In some
instances in cases of special contracts for legal services, which are wrongfully
prevented by the client, and where the attorney holds himself continually ready
to serve, the right of the latter to claim the whole compensation is subject to
such abatement as would, in the natural course of things, have been incurred if
the services had been continued. The value of the legal services proper will not
be apportioned; but while, upon the one hand, the attorney will not be put upon
the quantum meruit, he ought not to recover more than he would have made
if he had gone on with the case.”

The article on Attorney and Client, found in 6 Corpus Juris, pages 724, 725,
is even stronger in its statements. Following decisions in many States, it is
said:

“Where an attorney has been discharged by his client without cause, the
attorney may rescind the contract of employment and may recover on a quantum
meruit for services rendered up to the date of his discharge; or he may
treat the contract as continuing, although broken by the client, and may recover
damages for the breach.

“According to the weight of authority, the measure of damages for such
breach of contract is the full contract price, especially when the
attorney’s work is substantially done, unless some other sum has been agreed
upon. According to some decisions the measure of recovery is the contract price
abated by such sum as is reasonably represented by the unperformed part of the
service.”

Section 29 of the Philippine Code of Civil Procedure finds its source in the
laws of the State of Georgia. Following the practice of the court, we should,
therefore, be guided by the decisions of Georgia. In the case of Watson
vs. Columbia Mining Company ([1903], 118 Ga., 603), the Supreme Court of
Georgia, speaking through its Chief Justice, said:

“Contracts between attorney and client stand upon much the same footing,
in respect to binding effect, as do other contracts. If the attorney
violates a contract with a client and the latter is damaged, such client has the
same right to sue the attorney as he would have to sue any other person who had
violated a contract made with him. If the client commits a breach of his
contract with the attorney, he is liable in an action for damages therefor. The
defendant in the present case undoubtedly committed a breach of its contract
with its attorney. The evidence shows the contract and the breach. It shows
beyond all question that Watson was retained by the defendant as its attorney at
law in McDuffie county, and that he and the defendant had entered into a valid
agreement under which he was to advise its manager and represent it in all its
cases in that county. A suit was brought against it, and Watson tendered his
services in compliance with his contract. He was ready, willing, and able to
perform his part of the contract. The company declined to allow him to represent
it in the case, upon the ground that it had made a contract with an insurance
company, under which the latter had agreed to defend this suit. Of this contract
or policy of insurance Watson knew nothing, and had no notice until after the
Wellmaker case had been brought and his services had been tendered therein.

*             *             *             *             *       
     *             *

“The company committed a breach of its contract when it refused to employ the
plaintiff to represent it in the Wellmaker case, a case within the contract and
one which was litigated in the name of the defendant.

*             *             *             *             *       
     *             *

“It was argued that Watson’s suit was prematurely brought; that he should
have awaited the termination of the Wellmaker case. We think otherwise. When two
parties make a contract and one of them violates it, the other may sue
immediately for such special damage as he has suffered. Just as the amount of a
fee may be fixed upon by contract before the trial of the case in which the
services are to be rendered, so a jury may fix the amount of a reasonable fee in
a case still pending. The rule in ordinary contracts for services, as to
lessening the damages by seeking other work, does not apply to a contract
employing an attorney at law. All of his time is not contracted for, nor is he
free to take the other side in a case of the client’s. In such a case as this,
we think the attorney may sue at once for the breach of the contract with him,
without awaiting the termination of the case in which he should have been
employed by the defendant.”

The majority decision relies on the case of Martin vs. Camp ([1916],
219 N. Y., 170; L. R. A. [1917F], 402). The court there took the position that
there is no breach of contract where the attorney is discharged without cause by
the client. But, as pointed out by the editor of the Lawyers’ Reports Annotated,
the majority of the courts do not agree with the conclusion of Martin vs.
Camp.

It must be recognized that the relation existing between attorney and client
is a highly fiduciary one. But until the relationship is formed, attorney and
client stand on equal terms, and can enter into written contracts just as other
persons can enter into such contracts, provided the contract be not
unconscionable or unreasonable. If the client has employed the attorney for a
definite time or for a definite task, he has negatived his right to discharge
the attorney by his contract. If the client terminates the authority of the,
attorney to represent him, he has breached his contract, and must respond for
the breach.

The doctrine announced in the majority opinion makes contracts formulated by
attorneys and clients no more than pieces of paper.

Believing that this
dissent is in accordance with the provisions of Philippine law, the weight of
authority, and elemental justice, I vote for the affirmance of the
judgment.

---

April 16, 1923.

J. E. Blanco & R. Nepomuceno and Antonio Gonzalez for
appellant.

Thos. L. Hartigan, Thomas Cary Welch, Crossfield & O’Brien, Fisher,
DeWitt, Perkins & Brady; Ross, Lawrence & Selph; Paredes &
Buencamino, jr., Gabriel La O, Victoriano Yamzon, M. T. Boncan, M. G. Goyena,
Fernando Gorospe, Javier Gonzalez, J. Perez Cardenas, Juan T. Santos, Epimaco
Molina, and Camus & Delgado for appellee.

STREET, J.:

Upon the promulgation of the decision in this cause a motion to reconsider
was promptly interposed by the plaintiff-appellee, assisted by various lawyers
of the Manila Bar, who have intervened by leave of the court and have submitted
in writing their respective memoranda in support of said motion. By this means
the legal point decided by the court has been subjected to unusually careful
scrutiny, and the case law of the United States has been thoroughly examined for
precedents. It is needless to say that all of the authorities thus cited have
been reexamined by us, and their bearing on the point in controversy considered,
although the same ground had already been thoroughly investigated by this court,
before the original decision was made or the case voted. The interest aroused in
the case, rather than any difficulty in the point involved, must therefore serve
as the main justification for this supplemental opinion; though, apart from this
consideration, one or two facts have been brought out by the briefs on this
motion, which, it seems to us, should be here stated.

The first point to be noted is that no case has been cited in which any court
other than this has ever been called upon in an action of this character to
consider the effect of a statutory provision such as is contained in section 32
of our Code of Civil Procedure, to the effect that “a client may at any time
dismiss his lawyer or substitute another in his place.” However, the courts of
the State of New York, without the assistance of any express statutory
provision, have maintained the same rule in that jurisdiction practically since
the foundation of the Government.

Reference has been made to the fact that section 29 of our Code of Civil
Procedure, declaring, among other things, that “A written contract for services
shall control the amount of recovery if found by the court not to be
unconscionable or unreasonable,” is taken verbally from the Statutes of the
State of Georgia; and it seems to be supposed that this circumstance would
justify this court in holding that the present plaintiff can recover the entire
stipulated fee upon the same principles that would govern in other cases of
breach of contract, as has been held in the State of Georgia. But this argument
ignores the provision contained in section 32 of our Code of Civil Procedure,
giving the client the right to dismiss his attorney at any time, which
provision, so far as we are aware, has no antecedent in any statute of the State
of Georgia. It was apparently adopted by the author of our Code from the
jurisprudence of New York, though there is also something to the same effect in
General Orders, No. 29, promulgated by the Military Commander in these Islands
in 1899.

So vital is this provision of section 32 of the Code of Civil Procedure to
the determination of the present case, and so clearly is the decision of this
court planted thereon, that the plaintiff-appellee and the attorneys appearing
for him have naturally sought to devitalize it or parry its effects; and we note
that to this end the following propositions are advanced in one or another of
the various memoranda submitted in support of the motion: First, that said
provision should not be given effect because it impairs the obligation of
contract, contrary to the third section of the Jones Law; secondly, that said
provision should not be given effect because it is inconsistent with established
principles underlying the law of obligations in these Islands and, in
particular, as contrary to article 1255 of the Civil Code; thirdly, that even
supposing that said provision be admitted to be valid, it can have no force when
the contract for legal service is in writing, as already assumed in the
dissenting opinion; fourthly, again supposing said provision to be valid, it
should be interpreted as a bare recognition of the power of the client to effect
a de facto rupture of the relation with his attorney, leaving the client
subject, however, to an action for damages for the breach of contract; and
fifthly, again supposing said provision to be valid, it can have no effect when
the parties make an express agreement qualifying or abridging the right of the
client to dismiss the attorney.

Some of these suggestions were in the mind of the court when the case was
decided, and were passed upon inferentially, if not expressly, in the opinion
already promulgated. Others are clearly beyond the range of serious discussion
and require no refutation at our hands.

But it is suggested that the Supreme Court of the State of New York, in the
late decision of Greenberg vs. Remick & Co, (230 N. Y., 70), has
impaired the doctrine of Martin vs. Camp (219 N. Y., 170) ; and it is
supposed that the reasoning on which the decision in this case is based has been
thereby impaired. On the contrary, in this later decision, the Supreme Court of
New York has not only adhered to the doctrine of the earlier case but has gone
further and made an express judicial pronouncement upon a point which in the
earlier case had been formulated as mere dictum. That point is this: In
Martin vs. Camp the court was careful to limit the doctrine there
formulated to the case before it; and it was pointed out that the rule would be
different with respect to contracts of general retainer. In Greenberg vs.
Remick & Co., it was necessary to make a judicial pronouncement upon this
point, and the court there gave its final sanction to the doctrine which had
been advanced by way of dictum in Martin vs. Camp, to the effect
that where an attorney is employed under a general retainer for a fixed period
to perform legal services in relation to matters that may arise during such
period, the contract is completely binding on both parties. In other words, the
rule that the client has a right to dismiss his attorney at any time and
substitute another in his place has special reference to the employment of
lawyers to represent litigants in court in particular cases. As will be at once
apparent this is not qualification but amplification of the doctrine of the
earlier case.

In conclusion we have only to add that the provision from the Code of Civil
Procedure which we have applied to the matter in hand has the effect of placing
the legal profession in these Islands, in so far as this point is concerned,
upon the same footing as that which it now occupies and always has occupied in
the two greatest commercial communities of the earth, namely, England and New
York, in both of which lawyers have prospered in the same measure as other
elements of society. We are therefore undisturbed by any misgivings as to the
effect of this decision on the membership of the learned and honorable body.

The motion to rehear, including the request that the cause be submitted again
for oral argument, is denied.

Araullo, C. J., Villamor, and Romualdez, JJ., concur.

Mr. Justice Avanceña also voted to deny the motion but he was absent at the
time of the promulgation of this resolution and therefore his name does not
appear signed thereto.

	MANUEL ARAULLO
		Chief Justice

---

MALCOLM, J.:

The memoranda presented in support of the motion of reconsideration, by the
appellee, in his own behalf, and by eminent members of the bar, as amici
curiae, including the President of the Philippine Bar Association, the
Vice-President for the Philippines of the American Bar Association, and the
President of the Lawyers’ Club, have served to consolidate the opinion of the
members of the legal profession, and have served to convince me that the court
made a mistake, which it has now reaffirmed, when it struck down, in effect, all
contracts entered into by attorneys and clients.

The original majority decision accepted, as established, the written contract
for services entered into by the attorney-at-law, the plaintiff, and the client,
the defendant. In the dissenting opinion, now filed by two members of the court,
the legal question is avoided, by discussion of this question of fact. I prefer
to meet the issue as stated in the first decision, and as again announced in the
majority decision upon motion to reconsider, and desire to say something further
in amplification of my previous dissent.

The principles of contract law are established by our Civil Code, in relation
with our Code of Civil Procedure. (Civil Code, particularly arts. 1091, 1101,
1254, 1255, 1256, 1278; Code of Civil Procedure, sec. 285.) As therein expressly
provided by substantive law, and as expressly held by this Supreme Court,
decisions with respect to the validity and performance of contracts cannot be
left to the will of one of the contracting parties. (Civil Code, art. 1256;
Legarda vs. Zarate [1917], 36 Phil., 68.)

The provisions of Philippine civil law do not differ, in this respect, from
the provisions of the Anglo-American common law. In the standard work, Street,
Foundations of Legal Liability, volume 2, page 227, a principle applicable to
the instant situation is stated as follows: “It is a general principle of law
that where a special contract is made it is the exclusive source of legal rights
and duties between the parties as regards the matters to which that contract
pertains.” Good law was also announced not long ago by the Supreme Court of the
State of Washington in a case directly in point (Beck vs. Boucher [1921],
114 Wash., 574), when it was said: “The validity of a contract or retainer in
whatsoever form or howsoever effected, whether sought by client or lawyer, is
determined by the same rules of law as other contracts; and having the mutual
assent of the parties, it withstands impeachment, unless unlawful,—i. e.,
(1) contrary to the positive law; (2) contrary to positive morality; (3)
contrary to public policy.”

Section 29 of our Code of Civil Procedure relating to lawyers’ fees merely
embodies, in statutory form, a universal rule. Section 32 of our Code of Civil
Procedure, when it recognizes the right of a client at any time to dismiss his
lawyer, likewise merely announces a universal rule. Simply because these widely
accepted principles have been declared by statute does not enshroud them with
any greater sanctity, and does not change the situation in this jurisdiction
from the situation in other jurisdictions.

In my previous dissent, it was pointed out that according to the weight of
authority, the measure of damages for a breach of contract where an attorney has
been discharged by his client without cause is the full contract price. To
substantiate this statement, citations were made to Ruling Case Law and Corpus
Juris, and to a case coming from the Supreme Court of Georgia, which is
particularly applicable because of the fact that section 29 of the Philippine
Code of Civil Procedure finds its source in the laws of the State of Georgia.
Further research reveals corroborative authority so extensive as not to permit
of citation, but including among other cases, decisions of the Supreme Court of
California (Webb vs. Trescony [1888], 76 Cal., 621; Bartlett vs.
Odd Fellows Savings Bank [1889], 79 Cal., 218), which have particular interest
because the greater part of our procedural jurisprudence is derived from
California; a decision of the Supreme Court of the United States (McGowan
vs. Parish [1914], 237 U. S., 285), inferentially in point; two decisions
from the States of Oregon and Washington (Dolph vs. Speckart [1920], 94
Ore., 550 and Beck vs. Boucher, supra), later in time than the
much-heralded New York decision, and a decision of the Supreme Court of
Michigan, written by Mr. Justice Cooley (City of Detroit vs. Whittemore
[1873], 27 Mich., 281). In the case last cited, Mr. Justice Cooley, whose
eminent judicial services place him alongside Marshall and others in the galaxy
of great American jurists, said: “An attorney employed to carry a suit through
for an agreed sum has a vested right to the compensation when he accepts and
begins the service; and he cannot be lawfully deprived of it except by his own
consent or through his own default or misconduct. If he is discharged from the
employment before the service is completed, he may recover the whole sum.”

But reliance is again, as before, placed on the New York case of Martin
vs. Camp ([1916], 219 N. Y., 170). Investigation reveals that the New
York decision has now been adopted by the Supreme Court of Minnesota, with two
judges dissenting, in Lawler vs. Dunn ([1920], 145 Minn., 281), has been
followed in Lynn vs. Agnew ([1917], 166 N. Y. S., 274), and has been
distinguished in Greenberg vs. Remick & Co. ([1920], 230 N. Y., 70).
I would like to concentrate attention for the moment on this last expression of
the New York view.

In Greenberg vs. Remick & Co., it was held that an agreement
whereby defendant employed the plaintiff as its attorney and legal adviser for a
period of one year at a fixed compensation for the year, makes the defendant
liable for a breach of the contract. The following points are taken from the
decision and compared with the facts and the law before us:

1. The New York Court said: “The compensation of an attorney or counselor for
   his services is governed by agreement, express or implied, which is not
   restrained by law.” This, likewise, is accepted Philippine law.

2. The New York Court said: “A contract for professional employment may be made
   in this state between an attorney and client on such terms as they may agree.”
   This, likewise, is accepted Philippine law.

3. The New York Court said: “Such contracts must be fairly made. An attorney
   must not use his position as such to obtain for himself an unconscionable
   advantage and no contract express or implied will be enforced when its
   enforcement would be contrary to public policy.” This, likewise, is accepted
   Philippine law.

4. The New York Court said: “The relationship between attorney and client is
   peculiarly confidential. * * * Because of this peculiar and unusual relationship
   when a contract for professional employment is made between an attorney and one
   whom he is about to represent, there is read into the contract, unless
   expressly or otherwise negatived, an inference or implied condition assented
   to by the parties that while the attorney shall be bound by the terms thereof,
   the client shall have the power and the right to discharge the attorney at any
   time, with or without cause, leaving the attorney to recover for the value of
   his services to the time of the discharge. * * * The decision in Martin vs.
   Camp does not extend to a case where it appears by the express terms of the
   contract or otherwise that a different rule was intended by the parties.”
   While I cannot assent to this reasoning, yet for our purposes, permit me to
   invite attention to the clause, “unless expressly or otherwise negatived”
   which, as will appear in a moment, is exactly the present situation.

While the New York decision attempts to draw a distinction between the
situation of an attorney who conducts a particular suit or proceeding and of an
attorney who receives a specified salary for a designated term, both the
decision in Martin vs. Camp and the decision in Greenberg vs.
Remick & Co. recognize that the rule limiting the recovery by an attorney
upon discharge to a quantum meruit does not relate to a case where the
parties have otherwise agreed. Now, what are the present facts? One clause of
the contract between the plaintiff Cristobal and the defendant Ocson, which the
majority decision validates, provided among other things, as follows: “With
the understanding, nevertheless, that if by the desire and will of the first
party [Ocson] the second party [Cristobal] should be
relieved of his services as attorney before the division, the fee shall be as
stipulated and agreed in the present contract and thenceforth shall be deemed
due and payable.”

Words could hardly express more clearly the positive intent and purpose, to
stipulate so as to prevent the operation of the dismissal clause of section 32
of the Code of Civil Procedure upon this particular contract of employment. The
plaintiff and the defendant in this case had in mind and contracted most
particularly with respect to the very implied condition which is now made to
operate against the attorney. Under the New York rule, which this Court
adopts, the plaintiff could recover on his contract.

The majority decision dismisses the suggestions of counsel with the remark
that “some of these suggestions were in the mind of the court when the case was
decided, and were passed upon inferentially, if not expressly, in the opinion
already promulgated. Others are clearly beyond the range of serious discussion
and require no refutation at our hands.” But to me it appears that the points
made by counsel are conclusive.

An attorney, just as any private citizen, may bargain as to his services. The
principles of contracts apply as well to the attorney and the client as to other
persons» If the client employs the attorney for a definite time or for a
definite object, the client has negatived his right to dismiss the attorney by
his contract. An implied condition that the client may discharge the attorney at
any time is directly contrary to the agreement in the contract employing the
attorney for a specified purpose. Moreover, from a purely practical standpoint,
an attorney who has been engaged with respect to any matter, if discharged for
any reason, is in honor bound not to accept employment from the other side. Even
under the New York rule, which is not agreed to by the majority of the courts,
general retainers, and contracts, which expressly negative the right of a client
to dismiss the lawyer, are protected. In a sense, there is here an impairment of
the obligation of the contract.

From whatever viewpoint, therefore, this case
is considered, I arrive at the conclusion that judgment should be
affirmed.

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JOHNS, J.:

At the time the original opinion was written, in the interest of harmony in
the court, I concurred in the result only, which allowed the plaintiff P200 as a
compensation for the service which he did perform. I was then and am now of the
opinion that the contract in question was never legally made, and that it never
became binding upon the parties. It appears from the evidence that it was
prepared by the plaintiff in his own office. Assuming that at the time it was
prepared the contract was formally signed by the defendant in duplicate in the
plaintiff’s office, it never became a valid, binding contract. After it was
signed and before it was formally delivered to the plaintiff, the defendant
stated, in effect, that before anything was done or any proceedings were taken,
he wanted first to see his uncle and obtain from him the money with which to pay
the filing fees. Both copies of the signed contract were then delivered to the
defendant, who took them away with him and returned on the following day with
his signatures to it torn off. He then called the attention of the plaintiff to
the clause in the contract which provided that should he “be relieved of his
services as attorney before the division, the fee shall be as stipulated and
agreed in the present contract and thenceforth shall be deemed due and payable,”
to which the defendant made a formal objection and the plaintiff would not agree
to any change resulting in this action.

As I construe the evidence, the minds of the parties never met. It is
strange, indeed, that after the contract was signed in duplicate, plaintiff
delivered his copy to the defendant, who left the office with both copies of the
signed contract. In the very nature of things, if the minds of the parties had
met and the contract had been formally entered into between them, the plaintiff
would have kept and retained one copy and the defendant would have kept and
retained the other copy of the contract after it was signed.

There is no claim or pretense that the defendant obtained plaintiff’s copy
without his knowledge or consent. As a matter of fact, the evidence tends to
show that after it was signed in duplicate that plaintiff delivered both copies
of the signed contract to the defendant.

After contracts have been formally signed, entered into and approved, in the
ordinary course of business, it is the usual custom to deliver a copy to each
party to the contract.

Where, as in this case, the contract was prepared by
the plaintiff and after it was signed in duplicate, the plaintiff personally
delivered both copies to the defendant, who took them from the office for the
purpose of seeing his uncle and returned the next day with his name torn off of
both copies, it is strong and conclusive evidence that the minds of both parties
never met, and that legally speaking there never was any valid contract between
them. That was my construction of the evidence at the time that I concurred in
the result only in the former opinion. But in the interest of harmony in the
court, I am willing to allow the plaintiff P200 for the services which he
performed in preparing the petition for letters of administration.

---

OSTRAND, J.:

I agree with Mr. Justice Johns that there
was no valid contract between the parties; it may even be seriously doubted that
the document in question was ever signed by the defendant. The sum of P200 is,
in my opinion, ample pay for the work the plaintiff claims to have performed and
the motion for a reconsideration should be denied.