to uphold the contract. The following are a few of the cases which illustrate and uphold this doctrine: East Line & R. R. R. Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758; Pennsylvania v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289; Smith v. St. Paul & D. R. Co., 60 Minn. 330, 62 N. W. 392; Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N. W. 536; Pierce v. Tenn. Coal, Iron & R. Co., 110 Ala. 533, 19 So. 22. Respondent seeks to apply the rule announced in these cases to the case at bar; but the difficulty is that in this case the record shows that about the 1st of May, 1904, the parties mutually terminated the arrangement under which respondent had for two years been acting as the general attorney for the appellant and entered into a new and independent contract, namely, the contract in question, whereby respondent agreed to continue to act as general counsel for the company at a fixed salary of $100 per month. The only consideration that passed from the respondent for the employment at the time the contract was entered into was his promise to perform the services therein mentioned. In pursuance of the terms of the contract and the services rendered by respondent thereunder, appellant paid him $100 at the end of each month, which sum he accepted in full satisfaction of all services performed by him during said month, regardless of the amount or importance of the services rendered. As hereinbefore observed, the contract, neither expressly nor impliedly, bound him to act as appellant's attorney for any specified period of time. Therefore it lacked the essential element of mutuality of obligation and was terminable at will by either party. (1 Page on Contracts, sec. 304; Louisville & Nashville R. Co. v. Offutt, 99 Ky. 427, 36 S. W. 181, 59 Am. St. Rep. 467; Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; St. Louis, etc., R. Co. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467; Dorsey v. Packwood, 12 How. 126, 13 L. Ed. 921; 9 Cyc. 327, and numerous cases cited in note 20.)

7

Appellant's next contention is that, if the contract is not

open to the objection that it lacks mutuality, the judgment would still have to be reversed because of the alleged erroneous findings made by the court. The court in its ninth finding found: "That the discharge of plaintiff by defendant was without cause, . and said defendant thereby violated the terms and conditions of said agreement, to the injury and damage of the plaintiff." It is insisted that this finding is not only unsupported by, but is contrary to, the evidence. We think this contention must be upheld. Respondent's letter to appellant of May 3rd, 1904, which contains the terms and conditions of the contract, concludes as follows: "It is understood that my services are not to be dispensed with so long as such services are necessary and without good reason appearing therefor." It is claimed that the undisputed evidence shows that appellant had good reason for discharging respondent. It appears from the record that for several months prior to the discharge of respondent the relations between him and some of the officers of the company had been very unpleasant, and that there was much dissension between them over the business affairs of the company. These strained relations were very pronounced as between respondent and P. W. Madsen, who was president and business manager of the company. Neither appeared to have any respect for or confidence in the other. This feeling of ill will and resentment, which was the cause of much discord between them over matters pertaining to the management of the business of the company, became known to the finance committee, whose duty it was to employ all help required by the company, including attorneys, and the committee ordered Madsen to discharge. respondent. As to which of the parties was responsible for the ill will, discord, and lack of confidence that existed, we are not concerned. That these parties, especially Madsen and Price, mutually disliked each other, and that this feeling of ill will and discord must have been, at least to some extent, detrimental to the interests of the company, we think is conclusively shown by the evidence. The record shows

8

that the services of an attorney were indispensable to the successful carrying on of the business in which the appellant was engaged. Not a loan could be made without the advice and assistance of an attorney. The very nature of the business rendered it necessary for the officers of the company who had control and management of its business to continually consult and refer matters to the attorney. Besides, the evidence shows that the company was almost continually engaged in litigation before the courts of this and other states. It therefore requires no argument to show that to compel the company to continue in its employ an attorney under such strained and discordant relations would not only be detrimental to the successful carrying on of the business in which it was engaged, but might in course of time, jeopardize its very existence. Therefore we think the condition of affairs as shown by the undisputed evidence in the case afforded appellant good reason for discharging respondent. Furthermore, the law holds the relationship of attorney and client to be one of reliance, trust, and confidence, and, as was said in the case of Henry v. Vance, 111 Ky. 72, 63 S. W. 273:

9

"It would not do to require a party to continue in his service one whom he distrusts, or whose capacity he no longer believes in, nor to permit the attorney under such circumstances to continue the relationship, where the lack of confidence would seriously impair his efficiency and interfere with his full opportunity to serve the party and the court as his office requires. That the client has the right to discharge his attorney at any time without cause cannot well be doubted." (Mechem on Agency, 856; Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; 4 Cyc. 554.)

...

When the discharge is without cause, or where it is shown that the attorney is not alone derelict, but that both parties are at fault and are equally responsible for the unfortunate condition of affairs, which makes it necessary for the client, in the interest of his business, to dispense with the services of the attorney in his employment and employ another, the attorney may recover for the services already performed by him under

10

his contract of employment. (Weeks on Attorneys, sec. 334; Mechem on Agency, 856.) In this case, however, respondent was paid the contract price for his services, $100 per month for each and every month he was in the employ of appellant under the contract in question.

The judgment is reversed, and the cause remanded for a new trial; appellant to recover costs.

STRAUP, J., and LEWIS, District Judge, concur.

M. A. SMITH, Respondent, v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY, a Corporation, Appellant.

No. 1975. Decided March 23, 1909 (100 Pac. 673).

Plaintiff must

re

1. NEGLIGENCE-ACTIONS-PROOF-VARIANCE cover upon the negligent acts alleged, and not upon entirely different acts. (Page 395.)

In an

2. RAILROADS-INJURIES TO ANIMALS-PLEADING-VARIANCE. action against a railroad company for killing sheep on the track which ran through a street, where plaintiff alleged the existence of an ordinance limiting the speed of trains to 8 miles an hour, and that defendant's train at the time was running forty miles an hour, and that defendant, knowing that the sheep were on the track, so negligently and carelessly ran the train at such a high speed as to make it difficult to control, and negligently ran it into the sheep, the violation of the ordinance was not the gist of the cause of action or essential thereto, so that failure to prove it was not a fatal variance. (Page 395.) 3. RAILROADS-REGULATION-OPERATION AND EFFECT.

Statutes and

ordinances requiring certain precautions of railroads in running trains for the public safety do not exclude their general common-law obligation to use due care and diligence; they being bound to do so even in absence of statute. (Page 396.) 4. RAILROADS-INJURIES TO ANIMALS-RIGHT OF ACTION. If a railroad, knowing that sheep were on the track, so negligently and carelessly ran the train as to run over and injure them, it was liable. (Page 396.)

TO

OF

5. RAILROADS-INJURIES ANIMALS-ACTIONS-SUFFICIENCY EVIDENCE-NEGLIGENCE. In an action for injuries to sheep on the track, evidence held to show that defendant railroad company, knowing the sheep were on the track, negligently ran the train into them. (Page 396.)

6. RAILROADS-INJURIES TO ANIMALS-ACTIONS-ADMISSIBILITY OF EVIDENCE-NEGLIGENCE. In an action for injuries to sheep which were being driven along a street through which defendant's railroad ran, plaintiff could show that at certain times of the year large numbers of sheep were driven along the highway at that place, as bearing upon the care required of the trainmen at that place during such time.1 (Page 397.)

7. RAILROADS-CROSSINGS-MUTUAL RIGHTS AND DUTIES.

One driv

ing sheep along a public street through which a railroad ran was not a trespasser; the rights and duties of the drover and the railroad in the street being mutual and reciprocal. (Page 399.)

8. TRIAL INSTRUCTIONS-CHARGE AS A WHOLE. In an action for killing sheep on defendant's track which ran through a public street, plaintiff alleged a violation of a speed ordinance and negligence generally in operating the train, and the court instructed that defendant must operate the train with reasonable care, dependent upon the circumstances, and as the probability of danger increased a higher degree of care was required, so that the jury should "look to the circumstances of the case and determine from them, and from what was done under the circumstances, or what was not done which could have been done, and from all the evidence," whether defendant exercised ordinary care, and in other instructions specifically pointed out the acts of negligence alleged, and stated that there was no proof of a violation of the ordinance and to disregard that allegation, and, after charging in detail as to the law applicable to the other acts of negligence alleged, instructed that plaintiff could not recover unless he proved the negligence alleged in his complaint. Held, that the part of the charge quoted, when considered in connection with the other instructions, could not have been understood by the jury to authorize a recovery for negligent acts not alleged in the complaint. (Page 397.)

9. RAILROADS-INJURIES TO ANIMALS-NEGLIGENCE-CARE REQUIRED. One driving sheep in a street through which a railroad ran not being a trespasser, the railroad was bound, not only to operate its train with due care after discovering the peril of the sheep 1 Christensen v. O. S. L. R. Co., 29 Utah 192, 80 Pac. 746.