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Pocius v. Halvorsen





APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. CECIL C. SMITH, Judge, presiding.


Rehearing denied January 20, 1964.

This is a suit begun by the plaintiff to recover $7,000 paid to the defendant as attorney's fees pursuant to an allegedly contingent fee contract. Since the plaintiff recovered nothing in a prior suit in which she was represented by the defendant, she contends that the fees paid by her as the suit progressed should be refunded. After a bench trial, the court decided all issues in favor of the defendant and awarded him an additional fee of $4,021.65 pursuant to a counterclaim. The Appellate Court affirmed this decision and we allowed leave to appeal.

The record discloses that the plaintiff in the early part of January, 1955, went to the office of the defendant relative to her claim to certain real estate located at 6024 South Sacramento Avenue in Chicago and to certain cemetery lots, all of which were owned by one Emil Ber at the time of his death. At that time there was some discussion about the matter but no employment of the defendant resulted. On January 19, 1955, Mrs. Pocius returned to the defendant's office and they again discussed the case.

The defendant said that he would represent her if she would execute a written agreement which he presented to her. This provided for his employment "to perform such legal services as are necessary to my claim for the real estate and contents * * * in the building located at 6024 South Sacramento Avenue * * * against unknown heirs of Emil Ber, deceased, or other interested claimants. It is understood that upon the signing of the decree in the Superior Court of Cook County, or recording of a Master's Deed said legal services are completed and I hereby agree to pay a sum equal to one-third of the reasonable value of the property or money contained in said Decree less any sum already paid as attorney's fees on account. I further agree to pay actual court costs and other necessary expenses, including additional attorney's fees, if necessary, in prosecuting this claim." The defendant testified that this agreement was signed on January 19 by the plaintiff, and it forms the basis of his contention that he is entitled to retain the $7,000 already paid as well as to certain additional fees. The plaintiff testified that the signature on this contract was not hers and that she never agreed to the aforementioned contract. However, a handwriting expert appointed by the court, upon stipulation of the parties, submitted a written report in which he stated that the name, "Catherine Pocius," on the agreement of January 19, 1955, and on certain verified pleadings filed in the instant case were both written by the same person.

Two days after the execution of the January 19 agreement, the plaintiff paid to the defendant $500 and he delivered to her a receipt stating that said sum was a retainer. Thereafter, around the first of May, 1955, the defendant appeared in two proceedings begun by the public administrator in the probate court relative to the sale and discovery of assets. These proceedings were continued on Mrs. Pocius's motion and apparently were not subsequently prosecuted. On May 25, 1955, the defendant filed suit in the superior court of Cook County on behalf of the plaintiff seeking title to the rooming house and to the cemetery lots, naming the public administrator and the unknown heirs of Emil Ber as defendants. In June of 1955, the plaintiff again paid the defendant $500, his receipt this time reciting "for legal services rendered." The defendant explained that he collected these payments on account of his fee as the suit progressed, even though none were then due under the contract, because he felt that he was almost certain of obtaining a favorable decree and knew that as a matter of practice the public administrator would not appeal.

In April of 1956, after the plaintiff's evidence had been introduced, the judge indicated that he intended to rule in Mrs. Pocius's favor but stated that a motion to reopen the case filed by certain living heirs of Emil Ber, who appeared in said proceeding in person, should be granted.

Subsequently in June of 1956, the defendant presented to the plaintiff another contract which provided as follows: "This will reaffirm the retaining and employment of William T. Halvorsen as my attorney to prosecute and/or settle the suit and claim * * * in case No. 55S7879 * * * and I reaffirm my agreement to pay him as compensation for his services a sum equal to one-third of the reasonable value of the property or money realized from said claim either by settlement or judgment less any sum already paid for attorney's fees." This contract also provided that the plaintiff would pay the costs of the suit.

The defendant testified that he gave to the plaintiff the original and one carbon of this agreement but that she refused to execute same stating to him that she felt that she would lose the $1,000 which had already by this time been paid on account. The plaintiff on the other hand testified that she did execute the original of this contract and returned it to the defendant, and that this was the only contract that she had ever executed.

On February 19, 1957, a decree was entered in favor of the plaintiff, by the superior court, and on February 28, 1957, a master's deed was issued and recorded. The defendant on March 1, 1957, submitted a written statement to the plaintiff in which he asked for $10,000 in attorney's fee, based upon a $30,000 valuation of the property recovered, and for reimbursement of the then unpaid costs of around $30. Shortly thereafter, the plaintiff paid an additional $6,000 "on account," which brought her total payments to $7,000. The suit was then appealed to the Supreme Court of Illinois by the heirs of Emil Ber. During the pendency of the appeal Halvorsen talked to the attorney for the heirs who desired to settle the case and mentioned the figure of $3,000. Halvorsen recommended this settlement to the plaintiff, but she refused to pay anything stating that she had already won the case. In May of 1958, the Supreme Court reversed without remanding; the plaintiff took nothing by her suit.

In April of 1959, the heirs of Emil Ber filed a forcible entry and detainer action against Mrs. Pocius and again the defendant represented her and sought and obtained several continuances, apparently because it was felt that the plaintiff was considering purchasing the property from the heirs. Finally in September of 1959 pursuant to eviction notice, Mrs. Pocius left the rooming house and thereafter brought this suit seeking a refund of the $7,000 paid pursuant to the agreement in question.

A contingent fee contract by definition is one that provides that a fee is to be paid to the attorney for his services only in case he wins, that is, a fee which is made to depend upon the success or failure to enforce a supposed right, and which fee is generally paid out of the recovery for the client. (Adair v. First National Bank, 139 S.C. 1, 137 S.E. 192.) Because the plaintiff did not recover anything in the suit concerning her claim to the real estate, she contends here that the defendant is, under the agreement which she contends is a contingent fee contract, entitled to only the actual court costs and other necessary expenses mentioned in the last paragraph of the contract, which admittedly amounted to only $371.65.

The defendant, on the other hand, contends that the agreement of January 19 was not a contingent fee contract, but one that called for a fee equal to one third of the value of the property upon the completion of the trial court work as evidenced by the signing of a decree or recording of a master's deed. Since he did obtain such decree and master's deed, he claims that he is entitled to not only the $7,000 already collected and the costs advanced, but also, as found by the trial court, to an additional $2,000 for the trial work, based upon the defendant's valuation of the property at the trial at $27,000, and also an additional $1,650 for the reasonable value of his services for handling both the appeal ($1,500), and the forcible entry and detainer suit ($150), or a total additional fee including costs advanced of $4,021.

It is true, as noted by the defendant, that the contract of January 19 expressly provides that the defendant's "legal services are completed," and his fee payable, upon the entry of a decree or the recording of a master's deed. However, we have held that, "While it is not the province of courts to interpolate new terms into contracts, against the evident intention of the parties, with the view of making such contracts more reasonable, yet, on the other hand, even a strained construction of the language will be adopted for the purpose of preventing obvious injustice. The intention of the parties, it is true, must govern; but the experience of human affairs teaches courts that this intention is not to be sought merely in the apparent meaning of the language used, but this language may be enlarged or limited by reference to the circumstances surrounding the parties and the object they evidently had in view." (Robinson v. Stow, 39 Ill. 568, 572; and ...

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