§ 136 a. Where the contract is entire, the general rule is that if the plaintiff has failed to perform the whole on his part, he can recover nothing; for being entire, it cannot be apportioned. And this rule has been often applied to contracts for labor and service for a certain term of time, where the party had served only a part of the time. But it is also conceded, that if the part performance of a contract is beneficial to the promisee, and has been accepted by him, though the other party can maintain no action upon the original contract, his part of which he has failed to perform, yet he may maintain a general assumpsit for the actual value of his labor and materials which the promisee has accepted and enjoyed. Whether the defence of failure of performance of the entire contract, can be sustained in an action for the value of labor and services, upon the common counts, is a question upon which Judges are not perfectly agreed. On the one hand, it has been maintained with great force of reason, and so adjudged, that the party contracting for labor merely, for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if performance is commenced; and with knowledge also, that the other may eventually fail of completing the entire term; and that, therefore, he ought to pay the reasonable value of the benefit, which, upon the whole, he has thus derived, over and above the damage which may have accrued to him from the non-performance of the original contract.1 But the general current of decisions is to the contrary; the Courts holding that this case is not to be distinguished in principle from other cases of failure to perform an entire contract.2

1 Britton v. Turner, 6 N. Hamp. 481.

2 See Stark v. Parker, 2 Pick. 267, (2d. ed.), notes; Olmstead v. Beale, 19 Pick. 528; Pordage v. Cole, 1 Saund. 320, n. (4); Peeters v. Opie, 2 Saund. 352, n. (3), by Williams; Badgley v. Heald, 5 West. Law Jour. 392.

ATTORNEYS.

§ 137. UNDER this title, it is proposed to treat only of Attorneys at Law, and of the remedies in general, and at Common Law, between them and their clients, the subject of attorneys in fact having been already treated under the head of Agency. The peculiar remedies, given by statutes and rules of Court, in England, and in some few of the United States, being not common to all the American States, and applicable to but few, will not here be mentioned.

§ 138. Actions by attorneys, as such, are ordinarily brought either to recover payment for fees, disbursements, and professional services, or to recover damages for slander of their professional character. In the latter case, it seems generally necessary for the plaintiff to prove, by the book of admissions, or by other equivalent record or documentary evidence, that he has been regularly admitted and sworn; with proof that he has practised in his profession.1 But where the slanderous words contained a threat by the defendant, that he would move the Court to have the plaintiff struck off the roll of attorneys, this was held an admission that the plaintiff was an attorney, sufficient to dispense with further proof.2

§ 139. When the suit is by an attorney, for fees, &c., he must prove his retainer, and the fees and services charged. The retainer may be proved by evidence, that the defendant attended upon the plaintiff, at his office, in regard to the business in question; or, that he personally left notices or executed other directions of the plaintiff; or, that he was present

1 Jones v. Stevens, 11 Price, 235. And see Green v. Jackson, Peake's Cas. 236.

2 Berryman v. Wise, 4 T. R. 366; Ante, Vol. 1, § 195, note.

and assisting at the trial, while the plaintiff was managing the cause in his behalf; or, that he has spoken of the plaintiff, or otherwise recognized him, as his attorney.1 If the retainer was to commence a suit, which was afterwards abated by a plea of non-joinder, this is sufficient evidence of authority to commence another suit against the parties named in the plea.2 So, after an award made against a party, a retainer to "do the needful," is an authority to do all that is necessary on the part of the client, to carry the award into complete effect.3 So, where money was placed in the attorney's hands to invest for his client, with discretionary power "to do for her as he thought best," and he lent the money on mortgage, but discovering that the security was bad, sued out a bailable writ against the borrower, in his client's name, it was held a sufficient retainer for this purpose. It has, however, been laid down as a general rule, that a special authority must be shown to institute a suit, though a general authority is sufficient, to defend one; and accordingly, where one, acting under a general retainer, as solicitor, undertook to defend a suit at law brought against his client, upon certain promissory notes, and filed a bill in Chancery to restrain proceedings in that suit, the bill was ordered to be dismissed, with costs, to be paid by the solicitor, as having been filed without authority.5 If two attorneys occupy the same office, one being ostensibly the principal, and the other his clerk, under an agreement, that the latter shall receive all the benefit of the Common-Law business, those who employ the persons in the office, will be presumed to employ them upon

1 Hotchkiss v. Le Roy, 9 Johns. 142; Burghart v. Gardner, 3 Barb. S. C. R. 64. Sworn to an answer signed by the attorney. Harper v. Williamson, 1 McCord, 156. But where one attorney does business for another, it is presumed to be done on the credit of the attorney who employed him, and not of the client. Scrace v. Whittington, 2 B. & C. 11.

2 Crook v. Wright, Ry. & M. 278.

3 Dawson v. Lawley, 4 Esp. 65.

4 Anderson v. Watson, 3 C. & P. 214. But see Tabran v. Horn, 1 M. & R. 228.

5 Wright v. Castle, 3 Meriv. 12.

the terms, on which business is there done; and therefore, in a suit by the clerk for the fees of Common-Law business, those terms are competent evidence of a retainer of him alone.1 So, where two attorneys dissolved an existing partnership between them, but a client, with means of knowledge of that fact, continued to instruct one of them in a matter originally undertaken by the firm, this was held sufficient evidence, that the joint retainer had ceased.2

§ 140. But where solicitors are in partnership, they cannot dissolve their partnership, as against the client, without his consent, so as to discharge the retiring partner from liability; much less can the retiring partner, in such case, accept a retainer from the opposite party.3

§ 141. The effect of a retainer to prosecute or defend a suit, is to confer on the attorney all the powers exercised by the forms and usages of the Court, in which the suit is pending. He may receive payment;5 may bring a second suit after being nonsuited in the first for want of formal proof; may sue a writ of error on the judgment;7 may discontinue the suit; may restore an action after a non pros. ;9 may claim an

1 Pinley v. Bagnall, 3 Doug. 155. So, if both, being partners, were in fact employed, but only one was an attorney of the Court, and did the business there, yet both may jointly recover. Arden v. Tucker, 4 B. & Ad. 815; 5 C. & P. 248. Unless the other was but a nominal partner. Kell v. Nainby, 10 B. & C. And see Ward v. Lee, 13 Wend. 41; Simon v. Bradshear, 9 Rob. R. 59. (Louis.)

20.

2 Perrins v. Hill, 2 Jurist, 858.

3 Cholmondeley (Earl of) v. Ld. Clinton, Coop. Ch. Ca. 80; 19 Ves. 261, 273, S. C.; Cook v. Rhodes, 19 Ves. 273, note.

4 Smith v. Bosard, 2 McCord, Ch. 409.

5 Langdon v. Potter, 13 Mass. 320; Lewis v. Gamage, 1 Pick. 347; Brackett v. Norton, 4 Conn. 517; Gray v. Wass, 1 Greenl. 257; Erwin v. Blake, 8 Pet. 18; Com's v. Rose, 1 Desaus. 469; Hudson v. Johnson, 1 Wash. 10.

6 Scott v. Elmendorf, 12 Johns. 315.

7 Grosvenor v. Danforth, 16 Mass. 74.

8 Gaillard v. Smart, 6 Cow. 385.

9 Reinhold v. Alberti, 1 Binn. 469.

appeal, and bind his client by a recognizance in his name for the prosecution of it;1 may submit the suit to arbitration;2 may sue out an alias execution; 3 may receive livery of seisin of land taken by extent; may waive objections to evidence, and enter into stipulations for the admission of facts, or conduct of the trial;5 and for release of bail; may waive the right of appeal, review, notice, or the like, and confess judg ment. But he has no authority to execute any discharge of a debtor, but upon the actual payment of the full amount of the debt, and that in money only ;9 nor to release sureties;10 nor to enter a retraxit; nor to act for the legal representatives of his deceased client; 12 nor to release a witness.13

§ 142. In regard to the conduct of business by the attorney for his client, he must show, that he has done all that he ought to have done.14 Though he is generally bound to follow the instructions of his client, yet he is not bound to do

1 Adams v. Robinson, 1 Pick. 462.

2 Somers v. Balabrega, 1 Dall. 164; Holker v. Parker, 7 Cranch, 436; Buckland v. Conway, 16 Mass. 396.

3 Cheever v. Merrick, 2 N. Hamp. 376.

4 Pratt v. Putnam, 13 Mass. 363.

5 Alton v. Gilmanton, 2 N. Hamp. 520.

6 Hughes v. Hollingsworth, 1 Murph. 146.

7 Pike v. Emerson, 5 N. Hamp. 393; Talbott v. McGee, 4 Monr. 377; Union Bank of Georgetown v. Geary, 5 Pet. 99.

8 Savory v. Chapman, 8 Dowl. 656; Jackson v. Bartlett, 8 Johns. 361; Kellogg v. Gilbert, 10 Johns. 220; 5.Pet. 113; Gullet v. Lewis, 3 Stew. 23; Carter v. Talcott, 10 Verm. 471; Kirk v. Glover, 5 Stew. & Port. 34; Tankersly v. Anderson, 4 Desaus. 45; Simonton v. Barrell, 21 Wend. 362. 9 Com's v. Rose, 1 Desaus. 469; Treasurers v. McDowell, 1 Hill, (S. Car.) Rep. 184.

10 Givens v. Briscoe, 3 J. J. Marsh. 532.

11 Lambert v. Sandford, 3 Blackf. 137.

12 Wood v. Hopkins, 2 Penningt. R. 689; Campbell v. Kincaid, 3 Monr.

566.

13 Marshall v. Nagel, 1 Bailey, 308.

14 Allison v. Rayner, 7 B. & C. 441; 1 M. & R. 241, S. C.; Gill v. Lougher, 1 Cr. & J. 170; 1 Tyrwh. 121, S. C.; Godefroy v. Jay, 7 Bing.