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(- Mass. 123 N. E. 511.) would be necessary to employ local ed that he had a right to appear for counsel; and that on being author- the defendant in the superior court; ized to do so, he secured the serv- by their finding the jury decided ices of a Massachusetts firm of at- that the plaintiff did not violate torneys, who appeared of record in this statute. The cases of Browne the case and conducted the defense. v. Phelps, 211 Mass. 376, 97 N. E.

. The defendant's answer alleges that 762, and Ames v. Gilman, 10 Met. the plaintiff was not admitted to 239, are not applicable. In the first practise law in this commonwealth. case the plaintiffs were partners; There was evidence that the plain- one member of the firm, who was tiff was regularly employed by the not admitted to practise law in this defendant and performed services. commonwealth, represented that he The jury found for the plaintiff. was an attorney and counselor at

The only question open now on law lawfully qualified to practise. this record is whether the plaintiff In Ames v. Gilman the plaintiff is prevented from recovering be- held himself out as an attorney at cause not admitted to practise law law, although not authorized to in the courts of this commonwealth. practise in this commonwealth. In Rev. Laws, chap. 165, § 45, as amend the case at bar, the plaintiff pered by Stat. 1914, chap. 432, pro- formed legal services for the devides: “Whoever, not having been fendant at its request, although a admitted to practise as an attorney member of the bar at law in accordance with the pro- of another state; we Attorney and

cllent-right visions of this chapter, represents see nothing in the to recover for himself to be an attorney or counsel- evidence to prevent

services right

to practise. or at law, or to be lawfully qualified him from recoverto practise in the courts of this ing a reasonable compensation for commonwealth, by means of a sign, the services so rendered. business card, letterhead or other

There was no error in the charge wise,” shall be punished as provid- of the presiding judge. The jury ed in this section.

were told the plaintiff could not reThere was evidence that the plaintiff in no way held himself out

cover if he pretended to be an atas lawfully qualified to practise in

torney or attempted to practise law the courts of Massachusetts, and

while falsely representing he was that he informed the defendant he

authorized to practise, but that it "was not admitted in the state

was not a violation of law for a court," and that it would be neces

member of the bar of another state sary for it to have local counsel. to consult with clients in MassaThe jury were carefully instructed chusetts or to perform legal servon this point, and were told that it ices for them. The defendant's rewas for them to decide upon the evi- quests were properly refused. dence whether the plaintiff pretend- Exceptions overruled.

ANNOTATION.

Right of one not admitted to practise, or unlicensed, to recover compensation

for legal services. It has been held that a person prop- ices were rendered. Harland v. Lilienerly qualified and practising as an thal (1873) 53 N. Y. 438. attorney may, in the absence of a stat- And, of course, where the services utory provision or rule of court pro- are not performed in a court of record hibiting it, recover for legal services and are of a character the performrendered as an attorney, although he ance of which would not constitute may not have been formally admitted the practice of law, an unlicensed perto practise in the court where the serv- son may recover therefor. Mulligan

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v. Smith (1904) 32 Colo. 404, 76 Pac. New Jersey.-Wescott v.

Baker 1063 (services performed before the (1912) 83 N. J. L. 460, 85 Atl. 315. United States Land Department in se- New Mexico.-Goldenberg v. Law curing a patent); Bird v. Breedlove (1913) 17 N. M. 546, 131 Pac. 499. (1858) 24 Ga. 623 (argument before New York.-Buxton v. Lietz (1912) legislature in favor of a pardon for a 136 N. Y. Supp. 829, affirmed in (1913) convicted criminal); Dunlap v. Lebus 139 N. Y. Supp. 46. And see Hall v. (1901) 112 Ky. 237, 65 S. W. 441 (sery- Bishop (1869) 3 Daly, 109. ices rendered in presenting facts and Nor can a corporation which has not securing reduction of a tax claim); been, and cannot be, admitted to pracWestcott v. Baker (1912) 83 N. J. L. tise, enforce any claim under a con460, 85 Atl. 315 (examining title for tract to perform legal services, even survey and ascertaining encumbrances, though such services were performed which matters were not connected by lawyers hired by it. Re Bensel with any pending litigation); Lang v. (1910) 68 Misc. 70, 124 N. Y. Supp. Fritze (1899) - Tex. Civ. App. 54 726. And where voluntary associaS. W. 36 (seeing witnesses, ascertain- tions are prohibited from practising ing what their testimony would be, law, it has been held that neither a and reporting facts to defendant's at- mercantile agency composed of parttorney). In all of these cases the ac- ners none of whom were members of tion was to recover compensation for the bar, nor an individual acting under services rendered, and the defense was an association name, can enforce a conthat plaintiff was not an attorney at tract for the performance of strictly law and that the services were legal legal services. Buxton v. Lietz (1913) in character so as to preclude a re- 139 N. Y. Supp. 46, affirming (1912) covery. The decisions were upon the 136 N. Y. Supp. 829. ground that the services in question So, where the statutes allowing a were not such as could be performed lien for fees for counselors, solicitors, only by an attorney.

and attorneys are clearly limited to ofBut in practically all jurisdictions ficers of that rank, one who conducts statutes have now been enacted pro- a suit without having been legally adhibiting persons not licensed or admit- mitted as an attorney cannot have ted to the bar from practising law, costs taxed in his favor for his servand under statutes of this kind the ices. Bullard v. Van Tassell (1848) 3 great weight of authority is to the ef- How. Pr. (N. Y.) 402. fect that compensation for strictly It does not save the situation as legal services cannot be recovered by regards individuals seeking to recover one who has not been admitted to prac- for legal services performed by them, tise before the court or in the juris- that they have been admitted to pracdiction where the services were ren- tise in a foreign state, if they are undered.

admitted or unlicensed in the jurisdicColorado. Hittson Browne tion where the services are performed (1877) 3 Colo, 304; Bachman v. O'Reil- and recovery is sought. East St. Louis ly (1890) 14 Colo. 433, 24 Pac. 546. v. Freels (1885) 17 Ill. App. 339; Sel

Illinois.-East St. Louis V. Freels lers v. Phillips (1890) 37 Ill. App. 74; (1885) 17 Ill. App. 339; Sellers v. Phil- Perkins v. McDuffee (1874) 63 Me. 181 lips (1890) 37 Ill. App. 74; Hughes v. (statute expressly applied to such a Dougherty (1895) 62 Ill. App. 464, re- case); Ames v. Gilman (1845) 10 Met. versed on other grounds in (1897) 165 (Mass.) 239 (holding such to be the Ill. 384, 46 N. E. 229.

law in Massachusetts under the exMaine.—Perkins v. McDuffee (1874) press provisions of the Statute of 1785 63 Me. 181.

and down to the taking effect of the Massachusetts. Ames v. Gilman Revised Statutes of 1836, even though (1845) 10 Met. 239; Browne v. Phelps the attorney had removed to and per(1912) 211 Mass. 376, 97 N. E. 762. manently resided in Massachusetts,

Mississippi. McIver Clarke but that compensation could be recov(1891) 69 Miss. 408, 10 So. 581. ered under the Revised Statutes by

V.

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such a person, there being no such seeking recovery is an attorney at law express provision as in the earlier stat- if the statute requires other qualifiute); Browne v. Phelps (1912) 211 cations; as, for instance, payment of a Mass. 376, 97 N. E. 762 (holding that privilege tax. McIver V. Clarke a statutory provision for fine or im- (1891) 69 Miss, 408, 10 So. 581; Hall prisonment of one who not having v. Bishop (1869) 3 Daly (N. Y.) 109; been admitted to practise in Massa- Gourley v. McAloney (1897) 29 N. S. chusetts represents otherwise, applies 319. But see Re Horton (1881) L. R. to an attorney of another state who so 8 Q. B. Div. (Eng.) 434, 51 L. J. Q. B. represents, precluding recovery for N. S. 309, 45 L. T. N. S. 451, 30 Week. legal services rendered in Massachu- Rep. 102, 46 J. P. 293, wherein it was setts); Westcott v. Baker (1912) 83 held that the phrase, “acts and pracN. J. L. 460, 85 Atl. 315. And see Mar- tices" in a statute prohibiting solicittindale v. Shaha (1915) 51 Okla. 670, ors from recovering any fee for pro151 Pac. 1019. However, where the fessional services without having in statute merely provides that whoever force at the time a duly stamped cernot having been admitted to practise tificate, did not mean a single act, but represents himself to be a licensed at- related only to general practice. And torney shall be punished, it has been see Wallace v. Harrington (1901) 34 held that such a statute does not bar N. S. 1, wherein it was held that a a recovery by a licensed attorney of a statute which merely provided that foreign state for legal services ren- solicitors who have taken out yearly dered in the domestic state, where he certificates may recover compensation first informed his client that he was for their services while they hold such not admitted in the local state and that certificates does not preclude recovery it would also be necessary to have a by them of their costs even though local counsel to appear of record. they have failed to take out the certifiBROOKS v. VOLUNTEER HARBOR (report- cate required by the act. In Perkins v. ed herewith) ante, 1086.

McDuffee (1874) 63 Me, 181, it was Nor is a right to recover compensa- held that it was not sufficient to show tion established by the fact that there that plaintiff was a practising lawyer was an express contract providing for without proof of the qualifications recompensation. Sellers v. Phillips quired by statute. (1890) 37 Ill. App. 74.

And it seems that one who has been So, it has been said that the test licensed to practise law, but has failed as to the right of an attorney to re- to enroll, cannot be subsequently encover for professional services is, rolled nunc pro tunc so as to enable 'was he admitted to practise at the time him to recover for legal services of the rendition of the services, and rendered after obtaining his license, not, whether he was not licensed at but before enrolling. Thus in Ex parte the time of the making of the contract Fellows (1840) 3 Ill. 369, it was held for future services.Goldenberg v.

that where an attorney neglected to Law (1913) 17 N. M. 546, 131 Pac.

have his name entered on the roll of at499, holding that an action for profes

torneys at the time he obtained his sional services could be maintained

license, he could not afterwards have where the plaintiff had been admitted

it enrolled nunc pro tunc, it being said

that the granting of the motion could to practise at the time the services were performed, although the contract

not benefit him even in a suit to reto perform same antedated the obtain

cover for services performed as an ating of his license.

torney before his name was entered on And the general rule above stated

the rolls. However, in Miller v. Balcannot be circumvented when the sery- lerino (1902) 135 Cal. 566, 67 Pac. ices were purely legal, by seeking to 1046, 68 Pac. 600, wherein the court, recover as an "agent," and not as an in discussing the question whether or attorney. Tedrick v. Hiner (1871) 61 not it was necessary in a suit for atIll. 189.

torneys' fees to allege that the parties Nor is it sufficient that the person who rendered the services were attor

4 A.L.R.-69.

neys and had a license to practise as such, remarked, obiter, that "there is nothing in law prohibiting persons other than attorneys from recovering the reasonable value of their services when performed at the request of another." This statement is especially significant because of the nature of the services for which the action was brought, the plaintiffs having been engaged as associate counsel in a suit wherein they were by substitution made attorneys of record.

And the rule that an unlicensed person cannot recover for legal services has been held to apply to a partnership which consisted of a duly licensed attorney and an unlicensed person, it being ruled that a joint action for legal services cannot be maintained in such a case.

Hittson v. Browne (1877) 3 Colo. 304; Browne v. Phelps (1912) 211 Mass. 376, 97 N. E, 762 (holding, also, that recovery cannot be had in a separate action by the unadmitted attorney); McIver V. Clarke (1891) 69 Miss. 408, 10 So. 581. In Hittson v. Browne (Colo.) supra, the court said: "A joint right of action, in a law firm, for professional services, implies a joint right to contract and a consequent joint right to sue. It is not enough that one member of the firm in his individual capacity might have entered into a valid contract and enforced the same in court. By our statute an unlicensed person labors under a disability to contract or sue. To affirm the decree of the

court below (judgment for plaintiff is to assert that disability may be removed and the law evaded by an unlicensed person entering into partnership with a duly admitted attorney." But a contrary view was expressed in the New York case of Harland v. Lilienthal (1873) 53 N. Y. 438, where, in holding that since there was no statute or rule of court prohibiting one trained in the law but not formally admitted to practise from recovering compensation for his professional services, a partnership consisting of such a person and an admitted attorney could so recover, the court said that, even if there had been a statute or rule of law prohibiting recovery for legal services in a court before which the server had not been formally admitted to practise, yet the services having been rendered by a firm one of whom was duly admitted, the partners could have recovered in a joint action for such services, although one of them had not been admitted. The court in the Hittson Case (Colo.) supra, distinguished the Harland Case upon the ground that in that case there was no prohibitory statute, and said that “the remarks of the court that, if there had been a prohibitory statute or a rule of law forbidding an unlicensed attorney to practise, the fact that one member of the firm had been duly admitted would relieve from its effect, were entirely extrajudicial.”

G. J. C.

CHARLES GRANT, Appt.,

V.
GRAHAM CHERO-COLA BOTTLING COMPANY.

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Negligence — injury to consumer.

1. One negligently putting up highly charged beverages for the trade is liable for injury to the consumer by the bursting of a bottle, although there are no contractual dealings between them.

[See note on this question beginning on page 1094.]

(176 N. C. 256, 97 S. E. 27.) bottling charged beverages Evidence burden of proof prestandard of care.

cautions against explosions. 2. The practice of others engaged in 3. One injured by the explosion of a similar business is not the standard by highly charged drink bottled for the which to measure the care required of trade is not bound to prove what preone bottling highly charged beverages cautions the bottlers should have taken for the trade.

to prevent injury by the explosion. [See 20 R. C. L. 50; 24 R. C. L. 192.] [See 20 R. C. L. 194.]

APPEAL by plaintiff from a judgment of the Superior Court for Alamance County (Bond, J.) in favor of defendant in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

Statement by Clark, Ch. J.: put up this and another carbonated

This was an action for damages beverage in his factory, and, both sustained from an injury causing prior and subsequent to the plainthe loss of an eye. The plaintiff al- tiff's injury, bottles had burst, inleged that the defendant sold him juring numerous other persons unbottles containing ginger ale, der similar circumstances. There "which, on account of the excessive was also evidence that these facts pressure of gas, or by reason of were known to the defendant, who some defect in the bottle, were also knew the manner in which the dangerous as aforesaid, and likely plaintiff used these bottles in his to explode and to cause injury to business, which was the usual and any person handling them or being customary way in which merchants near them." The defendant's an- purchasing such merchandise used swer denied all negligence and and handled it. The plaintiff comaverred that, in bottling the bever- plained that the defendant was negage sold to the plaintiff, it had used ligent in bottling the beverage in high class standard materials and such a manner that it was dangerbottles; that it had a standard up- ous to handle, and defendant had to-date plant, equipped with modern failed in his duty to plaintiff in sellmachinery; and that it used tests ing him bottles which, on account of and checks to the end that exces- the excessive pressure of gas, or by sive pressure should not be used. It reason of some defects of the bottles, pleaded contributory negligence on were dangerous to be near or to the part of plaintiff, in that plain- handle. The plaintiff introduced tiff negligently submitted the four or five witnesses who testified bottled beverage to sudden and vio- to numerous explosions of both of lent changes of temperature, which the carbonated beverages bottled by caused and were likely to cause the the defendant at its plant. Some of explosion of any bottle containing these explosions were shown to have the carbonated beverage. The evi- occurred in the bottling; others, dence was that the plaintiff was a while the bottles were being crated merchant, and having purchased a and loaded; also, upon the road, number of bottles of ginger ale from while being hauled for delivery; the defendant at its factory in and, also, in the hands of customers Graham, North Carolina, had besides the plaintiff, after delivery. placed the same in the refrigerator These explosions were not denied in his store. Shortly thereafter, go- by the defendant, whose evidence ing to the refrigerator to get a showed explosions of these bottles bottle for a customer, upon lifting put up by it and also of other carthe top, and without touching any bonated beverages put up by other of the bottles, one of them burst; plants. The defendant put in evione of the pieces striking the plain- dence that its plant at Graham was tiff's left eye, destroying the same. modern, up-to-date, and equipped There was evidence that defendant with good machinery, and that it

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