New York. Haight v. Moore (1874) 5 Jones & S. 161; Jackson v. Stone (1900) 48 App. Div. 628, 64 N. Y. Supp. 820; Blaikie v. Post (1910) 137 App. Div. 648, 122 N. Y. Supp. 292. See also Brauer v. Lawrence (1914) 165 App. Div. 8, 150 N. Y. Supp. 497; Merritt v. Lambert (1843) 10 Paige, 352, affirmed in (1845) 2 Denio, 607; Re Howell (1915) 215 N. Y. 466, 109 N. E. 572, Ann. Cas. 1917A, 527. Oregon. Muir v. Morris (1916) 80 Or. 378, 154 Pac. 117, 157 Pac. 785. Pennsylvania. Maires's Case (1898) 7 Pa. Dist. R. 297, affirmed in (1899) 189 Pa. 99, 41 Atl. 988.

Texas. Waterbury v. Laredo (1887) 68 Tex. 565, 5 S. W. 81 (rule applied where client was municipal corporation); Kahle V. Plummer (1903) Tex. Civ. App. -, 74 S. W. 786; Laybourne v. Bray (1916) - Tex. Civ. App. —, 190 S. W. 1159. See also Phoenix Land Co. v. Exall (1913) Tex. Civ. App. 159 S. W. 474 (wherein the rule was recognized but held to be inapplicable to the facts). Vermont. See Mott v. Harrington (1840) 12 Vt. 199.

West Virginia. Dorr v. Camden (1904) 55 W. Va. 226, 65 L.R.A. 348, 46 S. E. 1014; Keenan v. Scott (1908) 64 W. Va. 137, 61 S. E. 806; Vance v. Ellison (1915) 76 W. Va. 592, 85

S. E. 776; Woodcock v. Barrick (1917) 79 W. Va. 449, 91 S. E. 396.

England. See Walmesley v. Booth (1739) 2 Atk. 27, 26 Eng. Reprint, 412; O'Brien v. Lewis (1862) 4 Giff. 221, 66 Eng. Reprint, 686, 32 L. J. Ch. N. S. 569, 9 Jur. N. S. 528, 8 L. T. N. S. 179, 11 Week. Rep. 318; Newman v. Payne (1793) 2 Ves. Jr. 199, 30 Eng. Reprint, 593, 4 Bro. Ch. 350, 29 Eng. Reprint, 930.

In Marshall v. Dossett (1892) 57 Ark. 93, 20 S. W. 810, it appeared that an attorney, who had agreed to defend a prisoner confined in jail, for a stipulated fee, afterwards, and while the relation of attorney and client subsisted, accepted a promise from the client to confer on him a gratuity in the form of a mule, in case the attorney succeeded in restoring him to liberty. The court said: "Such is the jealousy with which the courts guard transactions between attorney and client, while that relation exists, that the authorities agree that if the gift had been executed by delivery when the promise was made, under the case found, the client could have revoked it."

In Blaikie v. Post (1910) 137 App. Div. 648, 122 N. Y. Supp. 292, it appeared that an attorney was employed by the defendant to bring and prosecute a suit to set aside a mortgage, and gave the defendant a receipt for $100 for disbursements, and in it stated that his compensation was to be 25 per cent of the amount recovered. A suit was brought, which was decided adversely to the plaintiff therein. Seven days before the decision in that suit the attorney procured the defendant to write him a letter, stating that he should receive, as full compensation for legal services, 10 per cent of the amount the defendant should net from the sale of the land in controversy, after paying the mortgages thereon and the advances made to him by different persons named. It was also stated that the agreement was to take the place and be in lieu of all other agreements. The action to recover for legal services was based on the subsequent agreement. The court said: "The learned trial justice

charged the jury that the plaintiff could not recover without proof'that the agreement was fair, that the client acted freely and understandingly, that the client who executed the instrument fully understood its purport, and that it was made by him with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on the part of the attorney or misconception on the part of the client, and that a proper use was made by the attorney of the confidence reposed in him.' That charge was undoubtedly correct. It is unnecessary to cite authority to support it, because at all events it is the law of this case on this appeal."

In Woodcock v. Barrick (1917) 79 W. Va. 449, 91 S. E. 396, wherein it appeared that after a contract of employment was made between an attorney and client for services to be rendered, the attorney procured from his client an assignment of a deed and certain contracts as additional compensation for the services, it was held that whether the conveyances were fraudulent or otherwise, the client was entitled, at his election, to compel a reconveyance of the deed and a surrender or cancelation of the contracts.

In Muir v. Morris (1916) 80 Or. 378, 154 Pac. 117, 157 Pac. 785, wherein it appeared that the plaintiff, who was employed by the defendants as an attorney at a monthly salary, was informed by one of the defendants that if he would do his best to co-operate with them and make a certain venture a success, he would receive additional compensation, it was held that the contract was not enforceable, as it was not supported by any consideration.

In MOORE V. ROCHESTER WEAVER MIN. Co. (reported herewith) ante, 830, the court said: "Where an attorney, with the work he is required to do under his contract partially performed, exacts from his client an additional compensation under a threat of withdrawing from the case if the agreement is not made, nothing but the best of reasons would be sufficient to uphold the agreement."

In Waterbury v. Laredo (1887) 68 Tex. 565, 5 S. W. 81, in discussing the validity of an agreement made by a municipal corporation, with its attorney, to pay the latter an additional sum, above the amount that had been previously agreed on, to perform certain service, the court said: "The rule which denies to an attorney the right to make an agreement with his client after an employment in a particular business, by which the contract is so raised as to secure greater compensation to the former than was first agreed upon, is wholesome, and has its foundation in principles adopted to secure clients against imposition. It tends to preserve the purity of the bar and to accomplish the ends of justice, and it ought not to be departed from unless in some case peculiar in its facts. This case presents no facts which can take it without the rule."

In Vance v. Ellison (1915) 76 W. Va. 592, 85 S. E. 776, an action to enjoin the defendant, an attorney, from the enforcement of a deed of trust on real estate which had been given to secure the payment of fees for legal services, the plaintiff claimed that the deed was given to secure a fee of $1,000, the contract for which the attorney obtained from him after the relation of attorney and client had been established between him and the defendant, and after the latter was already bound by a prior written contract to render him the same service for an absolute fee of $500, the court said: "The contract between attorney and client for the additional fee of $1,000 is one which a court of equity will not sanction under the facts and circumstances appearing in this case. Though actual fraud or extortion may not be shown, the contract is presumptively invalid. It was at most a mere gift during the confidential relation, which for reasons of public policy is generally not allowable. Not an extenuating fact appears to take this feature of the case out of the general rule. An attorney does not deal with his client at arm's length. That which an attorney obtains from the client after the relation is established between them and

III. Contract for services outside scope of original employment.

Where additional services, outside the scope of the original employment, are contemplated, a contract for additional compensation, executed during the existence of the relation of attorney and client, is valid and enforceable, if it is fair and reasonable, free from fraud and duress, and based on a valuable consideration. Bartlett v. Odd Fellows' Sav. Bank (1889) 79 Cal. 218, 12 Am. St. Rep. 139, 21 Pac. 741; Boyle v. Waters (1919) 206 Mich. 515, 173 N. W. 519; Farmer v. Stillwater Water Co. (1909) 108 Minn. 41, 121 N. W. 418; Bishop v. Vaughan (1915) 186 Mo. App. 479, 172 S. W. 644; Isham v. Parker (1892) 3 Wash. 755, 29 Pac. 835. See also Olson v. Farnsworth (1914) 97 Neb. 407, 150 N. W. 260; Re Wise (1916) 172 App. Div. 491, 158 N. Y. Supp. 793; Laybourne v. Bray (1919) Tex. Civ. App. —, 214 S. W. 630.

Thus, where it appeared that an agreement was made between the plaintiff and a firm of attorneys to assist the plaintiff's attorney in prosecuting certain litigation to a final judgment, and after judgment the plaintiff's attorney ended the contract by payment, and agreed to give the assistant attorney a greater remuneration for prosecuting an appeal, it was held that the new agreement was valid and enforceable, and could not be attacked on the theory that it was an agreement between attorney and client and subject to close scrutiny. Boyle v. Waters (1919) 206 Mich. 515, 173 N. W. 519.

So, in Farmer v. Stillwater Water Co. (1909) 108 Minn. 41, 121 N. W.

418, it appeared that an attorney entered into a written contract with a prospective client to institute a certain action, and stipulated for his fees in conducting the proceedings in the district court and for a certain fee in the event of the argument of an appeal. The trial was had and an appeal was taken by the defendants in the action resulting in an order for a new trial. The attorney, maintaining that the compensation provided for in the original contract did not cover the services to be rendered on the second trial, demanded a contract for additional compensation, and the client verbally agreed to pay him what his services were reasonably worth in view of what he obtained from the case. The second trial resulted in an increased verdict, and before the appeal was heard a settlement was arranged. The attorney sued to establish his lien based on the verbal agreement. The court said: "This court has uniformly held persons in a fiduciary capacity, who deal with others having a right to rely upon their good faith, to the strictest accountability, and has afforded the largest possible proper measure of relief for the abuse of confidence. There is no question that this principle applies to the relationship of attorney and client, and to agreements between them for increased compensation to the attorney, after the confidential relationship is commenced. The burden is on the attorney to show by satisfactory evidence that the resulting contract is free from all fraud, undue influence, or exorbitancy. The labor of the attorney had proved, and in the future was likely to prove, greater than either party originally contemplated. It was natural, under the circumstances, that the attorney, thinking the written contract did not cover the second trial, desired to come to a definite understanding with his experienced client as to what he should be paid for the important services the future conduct of the lawsuit would involve. It was not, as has been previously set forth, a constructive fraud on his part to insist that the written agreement did not contemplate these services. No

actual fraud is shown, nor, as we understand, claimed. It was therefore proper that he should agree to accept in payment what the services he agreed to render would be reasonably worth, and that Farmer should agree to so pay him. That was a 'fair, reasonable, and just remuneration.' The consideration of the new agreement was the mutual promises of the parties. The finding,

in effect, that such contract is not void for want of consideration, constructive fraud, or otherwise, is fully justified by the record."

In Bishop v. Vaughan (1915) 186 Mo. App. 479, 172 S. W. 644, the court said: "While it is true that the contract of an attorney to render professional services for a fixed amount covers all services which are ordinarily or necessarily incident to the proper performance of the duties so undertaken by him, and that for such services he can recover no extra compensation (2 Thornton, Attorneys at Law, § 440), the mere fact that an attorney at law performs services under a contract fixing the amount of compensation to be received by him does not preclude him from recovering extra compensation for services rendered, with the express or implied assent of his client, which were not contemplated by the contract of employment.

Upon the undisputed facts in evidence, we think that plaintiffs' right to recover the additional compensation which defendant contracted to pay them is quite clear. The mere existence of the original contract of employment and of the relation of attorney and client thereby created did not render the parties incapable of contracting with each other with respect to services not contemplated by the former contract. would be a strange doctrine indeed that would deny an attorney a recovery for additional services rendered under such circumstances, and permit his client, who had solicited the rendition thereof and solemnly agreed to pay therefor, to breach his said contract with entire impunity

It

after having received the benefit of the services rendered."

So, it has been held that an attorney employed by a corporation on a salary basis may enter into a valid contract for some special service. Bartlett v. Odd Fellows' Sav. Bank (1889) 79 Cal. 218, 21 Pac. 741, 12 Am. St. Rep. 139, wherein the court said: "The case as presented by the record is one where an attorney at law, who was the general attorney of the corporation, at a salary which might be changed at the option of the corporation, and whose period of employment as such was subject to the same condition, was voluntarily and without any effort, fraud, or undue influence on his part, employed specially by the corporation, through its proper officers, to perform certain special work, which he was ready and willing to perform, and did partially perform, but which the defendant prevented him from fully accomplishing through no fault of his..

In this existing state of relationship of the parties, it does not seem at all wrong that in a special case the attorney should enter into contract with his principal for a special fee. And if, as in this case, the employment is voluntarily tendered to him by those competent to contract with him, with full knowledge of their right, and of the circumstances under which they are acting, we do not perceive anything improper in it."

Attorneys employed to collect a claim, for which they were to receive as compensation a stated percentage of the amount recovered, and who had filed suit for the amount of such claim, may, upon the filing of an independent suit by the party against whom the claim was made against the party making the claim, contract with their client for a stated sum, which was a reasonable fee, to defend the second suit, setting up as a defense thereto the amount claimed in the first suit, which, with the consent of their client, was abandoned. Laybourne v. Bray (1919) Tex. Civ. App. —, 214 S. W. 630. L. W. B.