storer. It is altogether probable that in the | tion, alteration or repair of said buildings course of years the plaintiff's lands which in proportion to the amount of their respechave been so injured as to be thought by some of the witnesses to be ruined will be restored to fertility by the processes of nature. But, be that as it may, they belong to the plaintiff, and the defendant has no right to continue its trespass thereon. The plaintiff has the right to have the waters of the stream flow through her land unpolluted, so that the cattle in her pasture will drink thereof, and the testimony tends to show that stock will not drink of the water when polluted by the tailings in question. For these reasons, the petition for a rehearing should be refused; the injunction allowed by the circuit court being limited as therein intended and as herein before indicated. STATE v. CAMPBELL (Supreme Court of South Carolina. Feb. 17, 1910.) CRIMINAL LAW (§ 13*)-STATUTORY OFFENSES. Cr. Code 1902, § 338, provides that every building contractor shall pay all laborers, materialmen, etc., out of the money received for the erection of the building, and that all laborers, etc., shall have a lien on the first money received, and that any contractor who shall for other purposes than paying money loaned on the contract expend, and on that account fail to pay laborers, etc., shall be guilty of a misdemeanor. Held, that it is an offense under the statute not to pay laborers, etc., out of money received on the contract; a contention that the offense created is for a failure by the contractor to pay out of the money loaned to him being without merit. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 13.*] Appeal from General Sessions Circuit Court of Richland County; R. W. Memminger, Judge. Prosecution against T. E. Campbell for a violation of Criminal Code, § 338. From a judgment quashing the indictment, the State appeals. Reversed. tive claims. Nothing herein contained shall make the owner of the building responsible in any way: Provided, that nothing contained in this section shall be construed to prevent any contractor or contractors or subcontractors from borrowing money on such contract. Any contractor or contractors or subcontractors who shall for other purposes than paying the money loaned upon said contract expend and on that account fail to pay to any or all laborers, subcontractors and materialmen out of the money received as provided in this section and as admitted by such contractor or contractors, or as may be adjudged by any court of competent jurisdiction, shall be deemed guilty of a misdemeanor," etc. Under this section respondent was indicted for that he "did unlawfully fail to pay one N. D. Porter $111.62, amount due him for lumber furnished the said T. E. Campbell, in the erection of the Confederate Home at Columbia, S. C.; the said T. E. Campbell having had the contract for the erection of the said home, having received payment in full for same, and having expended the money without having paid the amount due N. D. Porter as aforesaid, thereby defrauding him, against the form of the statute," etc. On motion of respondent the circuit court quashed the indictment, holding that "the offense created and denounced by section 338 of the Code, supra, is for a failure by the contractor to pay the laborers, and for the material furnished in the construction of the building, out of the money loaned to him, and that the indictment in this case does not charge the defendant with any criminal offense under section 338 of the Code." We think this construction of the statute was erroneous. The first part of the section makes it the duty of a contractor to pay laborers, subcontractors, and materialmen "out of the money received" on the contract, and gives them a W. Hampton Cobb, Sol., for the State. Gra- lien thereon, in proportion to the amount of ham & Sturkie, for respondent. their respective claims, and the latter part makes it a misdemeanor for any contractor to expend the money so received for "other purposes than paying the money loaned upon said contract," and on that account fail to pay laborers, subcontractors, and materialmen out of the money so received. HYDRICK, J. So much of section 338 of the Criminal Code of 1902 as is pertinent to the question arising upon this appeal reads as follows: "It shall be the duty of any contractor or contractors, in the erection, alteration or repairing of buildings in the state of It may be that the failure of a contractor South Carolina, to pay all laborers, subcon- to pay laborers, subcontractors, and materialtractors and materialmen for their lawful men out of the money loaned to him on the services and material furnished out of the contract would also come within the purview money received for the erection, alteration or of the statute. Otherwise, a contractor might repairs of buildings upon which said labor- obtain a loan on his contract to the full ers, subcontractors and materialmen are em- amount, and fail or refuse to pay his laborployed or interested, and said laborers, as ers, subcontractors, and materialmen out of well as all subcontractors and persons who the money so borrowed, and thereby evade shall furnish material for said building, shall the statute. But that point is not decided, as have a first lien on the money received by it is not properly before the court. said contractor or contractors for the erec- Judgment reversed. MATHENY v. FARLEY et al. (Supreme Court of Appeals of West Virginia. Feb. 1, 1910.) (Syllabus by the Court.) 1. ATTORNEY AND CLIENT (§ 134*)-CONTRACT -ABANDONMENT OF SERVICE-RIGHT TO RECOVER FEES. An attorney, retained generally to conduct a legal proceeding, is presumed, in the absence of anything to indicate a contrary intent, to enter into an entire contract to conduct the proceeding to its termination, and he cannot lawfully abandon the service, before such termination, without justifiable cause; but if he have suffi cient cause therefor he may do so, and may recover what his services already rendered are reasonably worth. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 304; Dec. Dig. § 134.*] 2. ATTORNEY AND CLIENT (§ 134*)—COMPENSA TION-ABANDONMENT OF EMPLOYMENT. A case in which the facts proven were held to justify abandonment by an attorney of the case in which he had been employed, and to support the verdict and judgment in his favor for services already rendered. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 304; Dec. Dig. § 134.*] Error from Circuit Court, Raleigh County. Action by M. F. Matheny against S. W. Farley and others. Judgment for plaintiff, and defendants bring error. Affirmed. Blake & Ward, for plaintiffs in error. File & File, for defendant in error. injunction bond enlarged. This was not satisfactory to the defendants, and without consulting plaintiff and without notice to him, and he says against his protest, they employed other counsel, not only to obtain a dissolution of the injunction, which failed, but also to defend the ejectment suit. After this defendants neither consulted nor conferred with plaintiff directly or through their new counsel employed. Defendants never directly notified plaintiff that he was discharged, but when depositions were being taken in the injunction suit one of them told counsel on the other side that they had let plaintiff go, and they afterwards appeared by other counsel. To another lawyer whom they tried to employ in the case, said: "We have got rid of him, and gotten one of the defendants, referring to plaintiff, Mr. English." Mr. English, the attorney employed by defendants, and a witness for them on the trial of this case, testified that it is an unwritten law that one lawyer does not go into a case where another is employed until he is satisfied that the other one has been discharged. Mr. English was asked why he did not consult with plaintiff with reference to the case, and answered that when he was employed he did not think Mr. Ma theny had any thing to do with it. After wards, when plaintiff was about to sue defendants for his services, one of them saw him and tried to induce him to go back into the case, expressing regrets on account of what had occurred, and putting the blame for it upon his co-defendants. But plaintiff de MILLER, J. From the judgment of the Justice against them, for $125.00, defendants, Nelson, Edward and Samuel Farley, appealed to the Circuit Court, where, upon a trial before court and jury, plaintiff recover-clined re-employment and brought this suit. ed a verdict and judgment against them for the same amount. To this judgment a writ of error was awarded by this court. Plaintiff sued defendants for one hundred and fifty dollars for professional services rendered in an ejectment suit which defendants had employed him to defend. The fact of his employment is not denied, but admitted. The fee was not agreed upon, but sometime after his employment plaintiff told one of the defendants, when upon the land with him, that he would charge them not less than three hundred dollars, to which no objection was made. The question controlling the case is whether plaintiff was discharged, or he voluntarily and without good cause abandoned the case before fulfilling his contract of employment. The evidence shows that pending the suit, and against plaintiff's advice, defendants went upon the land in controversy and began cutting timber, and were at once enjoined. Being of opinion that it would be useless, plaintiff declined to appear for the defendants in the injunction suit, pending the ejectment suit, and try to obtain a dissolution of the injunction, but did file a petition for them in the cause to get the penalty of the Some of the facts testified to by plaintiff and his witnesses are in some particulars controverted by defendants, two of them testifying that they had not authorized plaintiff's discharge. The evidence shows that after his employ. ment plaintiff made preparation to try the ejectment suit; that he made an abstract of the title, and went upon the land with one of the defendants and traced the lines in order to become familiar with all the details; that he made a diagram or plat of the land; and that he had many consultations with them; that they unduly and unnecessarily bothered him about the case, and he proves by his own evidence and the evidence of another witness the value of his services to have been at least $150.00, and that he was always ready and willing to perform his contract up to the time of his alleged discharge. Do the facts prove a discharge, or a voluntary abandonment of the case for good cause, entitling plaintiff to recover the value of his services in this action? The general rule of law is that when a contract for service is entire, for a given sum, full performance of the contract is a condition precedent to the right to recover the stipulated compensation. elect to take this course. He accepted the conduct of defendants and the information received, as good cause for abandoning the case, and we are of opinion that the virtue of his action rests rather upon the theory of justifiable abandonment than upon the theory of discharge. While there is evidence of an intention to discharge plaintiff and that defendants no longer regarded him in their service, the evidence does not come up to an actual discharge. Mechem on Agency, sections 634, 635, and | quired to retire from a case. He has the 854. In section 854, this writer says: "An right to stand his ground, and maintain his attorney who is retained generally to con- position as counsel of record until his fees duct a legal proceeding, is presumed, in the and disbursements are paid or secured, and absence of anything to indicate a contrary before the court can enter an order of subintent, to enter into an entire contract to stitution it should see that this condition is conduct the proceeding to its termination; | fulfilled by a client. But plaintiff did not and he cannot lawfully abandon the service, before such termination, without justifiable cause and reasonable notice." In said section 854 Mr. Mechem further says: "But if the attorney has sufficient reason to justify his abandonment, he may in all cases recover what the services already rendered are reasonably worth, and if the service had been undertaken for a fixed sum, it has been held that he may treat the cause for abandonment as a prevention of completion by the client, and recover the stipulated price." The "more liberal rule" of Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713, has never been fully adopted in this state, but our cases, some of them relating to attorneys' fees, recognize the general rule prevailing in all jurisdictions, that if an attorney, after he has been employed to perform an entire service, be discharged without good cause, or he abandons the case for good cause, or be prevented by the act of his client from full performance, he may recover the value of his services, or the entire amount agreed upon, depending on the circumstance of the case. Polsley v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613; Peck v. Marling, 22 W. Va. 708; Tomlinson v. Polsley, 31 W. Va. 108, 5 S. E. 457. On the question of discharge it is conceded by plaintiff that no formal notice thereof was given him by defendants. His contention is, however, that their employment of other counsel, over his protest and objection; their failure thereafter to confer with him about the case; the admission by one of them afterwards to plaintiff that it was their intention that he should no longer remain in the case, and charging the responsibility therefor on his co-defendants; and the declarations of one or more of defendants to other attorneys, communicated to him, as stated, was evidence of their intention to discharge him and was equivalent to notice to him thereof, and upon which he had the right to act. The controlling question then is, did plaintiff abandon the case for good cause? We must accept the verdict of the jury as an affirmative answer to this question. What will justify abandonment is thus stated by Mechem on Agency, section 855: "No general rule can be laid down by which it can, in all cases, be determined what cause will be sufficient to justify an attorney in abandon. ing a case in which he has been retained But if the client refuses to advance money to pay the expenses of the litigation, or if he unreasonably refuses to advance money, during the progress of a long litigation, to his attorney to apply upon his compensation, sufficient cause may be furnished to justify the attorney in withdrawing from the further service of the client. So any conduct upon the part of the client during the progress of the litigation which would tend to degrade or humiliate the attorney, such as attempting to sustain his case by the subornation of witnesses, or any other unjustifiable means, which would furnish sufficient cause. the client demanded of the attorney the performance of an illegal or unprofessional act; or if the client were seeking to use the attorney as a tool to carry out the malicious or unlawful designs of the client, the attorney might lawfully abandon the service. So if the client insists upon the employment of counsel with whom the attorney cannot cordially co-operate, the attorney will be justified in withdrawing from the case." So if We are of opinion that upon the principles of this and the other authorities cited the evidence justified the verdict and judgment in favor of the plaintiff. The rule stated in 4 Cyc. 1004, on the authority of Pickard v. Pickard, 83 Hun (N. Y.) 338, 31 N. Y. Supp. 987, is that the question whether an attorney was justified in withdrawing from a case is a question of fact for the jury. Did all this amount to a discharge? A client has the legal right to discharge his attorney, at any time, with or without cause; but not without cause unless he first pays or secures the attorneys' fees and charges, and the court will not enforce a substitution until this has been done. Mechem on Agency, section 856; Weeks on Attorneys at Law, section 250; 4 Cyc. 954, 955. These authorities make it clear that without notice, and We are, therefore, of opinion to affirm the payment of his fees, an attorney is not re-judgment below. SHRIVER v. MARION COUNTY COURT. (Supreme Court of Appeals of West Virginia. Feb. 1, 1910.) (Syllabus by the Court.) 1. HIGHWAYS (§ 197*) - UNNECESSARY PASSING OVER KNOWN DEFECT-ASSUMPTION OF RISK. If a traveler upon a highway, in attempting to pass over a defect therein, open and apparent and of which he had full knowledge, is thereby injured, and there was no necessity for his endeavor to pass over it, he is deemed in law tempt, and denied compensation for the injury on the ground of contributory negligence. to have assumed the risk incident to the at That it is not negligence per se to use a highway, known to be in bad condition, does not imply right in a traveler to compensation. for injuries, recklessly incurred, nor freedom from duty to suffer reasonable abatement of strict legal rights in respect to highways and take reasonable measures for his safety, even to the extent of some delay and effort to avoid injury. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 491-503; Dec. Dig. § 197.*] 3. NEGLIGENCE (§ 136*)-DIRECTION OF VERDICT-CLEAR CONTRIBUTORY NEGLIGENCE. On the appearance of a clear case of contributory negligence, the trial court should take the case from the jury upon a proper demand for such action. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-306; Dec. Dig. § 136.*] for plaintiff, and defendant brings error. Affirmed. Scott C. Lowe and Charles Powell, for plaintiff in error. Howard N. Ogden, for defendant in error. POFFENBARGER, J. A demurrer to evidence of consistent and uniform tendency, adduced by the plaintiff, in an action of trespass on the case, instituted in the circuit court of Marion county by John H. Shriver against the county court of said county, to recover damages for injury to his person and property, caused by a defect in a highway, which it was the duty of the defendant to keep in repair, was overruled and a judgment rendered for $200, the amount of the conditional verdict, and the only real question raised on the writ of error is whether recovery is barred by the plaintiff's contributory negligence or assumption of risk. Stating the facts, each in his own terms, the witnesses say there was a large mud hole, in said county, just outside of the city of Mannington, on a public road, called "The Pike." It was deep and troublesome, and so nearly occupied the width of the road that there was not sufficient room on either side to permit vehicles to pass around it with safety and certainty, but there was almost sufficient room for that purpose on one side of it. The hole was from two to three feet deep, and partially filled with mud and water. Some of the witnesses say the surface of the water was a foot belgw that of the ad 4. HIGHWAYS (§ 197*)-UNNECESSARY USE OF DANGEROUS WAY-ASSUMPTION OF RISK. A traveler, having two reasonably convenient ways for his journey, one of which is dan-jacent ground, and that the mud and water gerous and the other not, assumes the risk of injury, if he uses the dangerous way, and cannot recover for any injury he may thereby sus tain. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 491-503; Dec. Dig. § 197.*] 5. HIGHWAYS (§ 213*) USE OF DEFECTIVE HIGHWAY-ACTION FOR INJURIESQUESTION FOR JURY-NECESSITY FOR USING DEFECTIVE WAY. were deep enough to go over the front axle of an ordinary wagon. The drop of a wagon from solid ground into this hole was almost the bank was straight up and down. This perpendicular on one side. In other words, peculiarity was due to the fact that the hole was at the end of a construction of poles or logs, known as "corduroy" work, on a portion of the road. The level space between the If the evidence leaves it uncertain whether hole and the porch of Harden's store was there was a safe and available way, either by about three feet, less than the width between a public road or over adjacent private property, by which a traveler, injured by an obvious de- the tires of an ordinary road wagon. From fect in a highway, could have avoided it, the this the ground sloped to the bottom of the necessity of assuming the risk incident to the at-hole. In attempting to drive around the hole tempt to use it is a question for the jury. [Ed. Note. For other cases, see Highways, Cent. Dig. 88 535-537; Dec. Dig. § 213.*] 6. HIGHWAYS (§ 213*)-DEFECTIVE HIGHWAYS -NECESSARY USE-CARE REQUIRED. If the circumstances justify a traveler in assuming the risk incident to an attempt to use a dangerous place on a highway, he is required to exercise no more than ordinary care for his safety in doing so, and whether he exercised such care or not is generally a question for the jury. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 535-537; Dec. Dig. § 213.*] Error to Circuit Court, Marion County. Action by John H. Shriver against the County Court of Marion County. Judgment on this space, two wheels would necessarily pass along the slope, while the others would be on the higher level space. And as such an attempt involved a curve, in the case of a wagon of any length, a hind wheel would necessarily pass through a portion of the mud hole. Generally, people drove through the place. Occasionally, a short vehicle or a wagon not top heavy would pass around without upsetting. All the witnesses agree that the hole was obviously dangerous. There were other roads the plaintiff might have used to reach his destination on the occasion of the accident, but these were also dangerous. In fact, all the public roads leading in that direction had become so bad that a way made | 752), but the place involved in this controveracross private lots a short time before the accident was used, and even this seems to have led down to the mud hole, here involved. The plaintiff was a teamster, engaged in hauling and delivering merchandise generally in and about the city of Mannington, and using, in this business, a wagon of considerable length and of the class known as "undercut," the bed standing high enough above the frame of the wagon at the front end to permit passage of the front wheels under it in turning. The bed had a flaring top which extended over the wheels, and was equipped with a seat and a footboard. Occupying this seat, the driver was a considerable distance from the ground and above the level of the two horses by which the wagon was drawn. Driving this wagon, well laden with merchandise for delivery, and coming to the mud hole, plaintiff stopped his team and deliberated as to whether he should attempt to drive through it or to go around it. He discussed this question with a Mr. Lang, the owner of the merchandise, who occupied the seat with him, and decided to attempt to go around it. He says he chose this course because he had observed that, in driving into it on former occasions. the footboard struck the horses on the hips, when the front wheels dropped off of the corduroy into the hole. Lang says he attempted to drive around because of his inability to make the turn in the direction in which he wanted to go, if he drove through it. Having driven partially around, Lang says he stopped the team for a moment and made a turn, whereupon the wagon turned over, throwing them both to the ground and breaking the plaintiff's leg, injuring his wagon and destroying some of the articles he was hauling. The evidence leaves no doubt that the cause of the upsetting was the sliding of the right hind wheel into the mud hole. It is also beyond question that the plaintiff knew all about this mud hole. Having driven through it before, he knew its depth and its peculiarities in at least a general way. Certainly he had enough information concerning it to apprise him of its dangerous character. He had full knowledge of every material fact and circumstance pertaining to the defect. He also knew the size and character of his wagon and the nature and weight of the load it was carrying. Besides, he was an experienced teamster, fully capable of determining whether or not the attempt he was making was danger ous. The negligence of the county court in permitting such a defect in its highway is clear and undoubted. We have decisions which lay down a very liberal rule in favor of municipal corporations, exonerating them from negligence when a defect in a highway is not obviously dangerous (Waggener v. Point Pleasant, 42 W. Va. 798, 26 S. E. 352; Van Pelt v. Clarksburg, 42 W. Va. 218, 24 S. E. 878; sy appears from the evidence to have been ac- 309; |