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(Mass., 123 N. E. 511.)
would be necessary to employ local counsel; and that on being authorized to do so, he secured the services of a Massachusetts firm of attorneys, who appeared of record in the case and conducted the defense. The defendant's answer alleges that the plaintiff was not admitted to practise law in this commonwealth. There was evidence that the plaintiff was regularly employed by the defendant and performed services. The jury found for the plaintiff.
The only question open now on this record is whether the plaintiff is prevented from recovering because not admitted to practise law in the courts of this commonwealth. Rev. Laws, chap. 165, § 45, as amended by Stat. 1914, chap. 432, provides: "Whoever, not having been admitted to practise as an attorney at law in accordance with the provisions of this chapter, represents himself to be an attorney or counselor at law, or to be lawfully qualified to practise in the courts of this commonwealth, by means of a sign, business card, letterhead or otherwise," shall be punished as provid
ed in this section.
There was evidence that the plaintiff in no way held himself out as lawfully qualified to practise in the courts of Massachusetts, and that he informed the defendant he "was not admitted in the state court," and that it would be necessary for it to have local counsel. The jury were carefully instructed on this point, and were told that it was for them to decide upon the evidence whether the plaintiff pretend
ed that he had a right to appear for the defendant in the superior court; by their finding the jury decided that the plaintiff did not violate this statute. The cases of Browne v. Phelps, 211 Mass. 376, 97 N. E. 762, and Ames v. Gilman, 10 Met. 239, are not applicable. In the first case the plaintiffs were partners; one member of the firm, who was not admitted to practise law in this commonwealth, represented that he was an attorney and counselor at law lawfully qualified to practise. In Ames v. Gilman the plaintiff held himself out as an attorney at law, although not authorized to practise in this commonwealth. In the case at bar, the plaintiff performed legal services for the defendant at its request, although a member of the bar
of another state; we Attorney and
There was no error in the charge of the presiding judge. The jury were told the plaintiff could not recover if he pretended to be an attorney or attempted to practise law while falsely representing he was authorized to practise, but that it was not a violation of law for a member of the bar of another state to consult with clients in Massachusetts or to perform legal services for them. The defendant's requests were properly refused. Exceptions overruled.
Right of one not admitted to practise, or unlicensed, to recover compensation for legal services.
It has been held that a person properly qualified and practising as an attorney may, in the absence of a statutory provision or rule of court prohibiting it, recover for legal services rendered as an attorney, although he may not have been formally admitted to practise in the court where the serv
ices were rendered. Harland v. Lilienthal (1873) 53 N. Y. 438.
And, of course, where the services are not performed in a court of record and are of a character the performance of which would not constitute the practice of law, an unlicensed person may recover therefor. Mulligan
v. Smith (1904) 32 Colo. 404, 76 Pac. 1063 (services performed before the United States Land Department in securing a patent); Bird v. Breedlove (1858) 24 Ga. 623 (argument before legislature in favor of a pardon for a convicted criminal); Dunlap v. Lebus (1901) 112 Ky. 237, 65 S. W. 441 (services rendered in presenting facts and securing reduction of a tax claim); Westcott v. Baker (1912) 83 N. J. L. 460, 85 Atl. 315 (examining title for survey and ascertaining encumbrances, which matters were not connected with any pending litigation); Lang v. Fritze (1899) Tex. Civ. App. -, 54 S. W. 36 (seeing witnesses, ascertaining what their testimony would be, and reporting facts to defendant's attorney). In all of these cases the action was to recover compensation for services rendered, and the defense was that plaintiff was not an attorney at law and that the services were legal in character so as to preclude a recovery. The decisions were upon the ground that the services in question were not such as could be performed only by an attorney.
But in practically all jurisdictions statutes have now been enacted prohibiting persons not licensed or admitted to the bar from practising law, and under statutes of this kind the great weight of authority is to the effect that compensation for strictly legal services cannot be recovered by one who has not been admitted to practise before the court or in the jurisdiction where the services were rendered.
Colorado. Hittson v. Browne (1877) 3 Colo. 304; Bachman v. O'Reilly (1890) 14 Colo. 433, 24 Pac. 546.
Illinois.-East St. Louis v. Freels (1885) 17 Ill. App. 339; Sellers v. Phillips (1890) 37 Ill. App. 74; Hughes v. Dougherty (1895) 62 Ill. App. 464, reversed on other grounds in (1897) 165 Ill. 384, 46 N. E. 229.
Maine. Perkins v. McDuffee (1874) 63 Me. 181.
New Jersey.-Wescott v. Baker (1912) 83 N. J. L. 460, 85 Atl. 315. New Mexico.-Goldenberg v. Law (1913) 17 N. M. 546, 131 Pac. 499.
New York.-Buxton v. Lietz (1912) 136 N. Y. Supp. 829, affirmed in (1913) 139 N. Y. Supp. 46. And see Hall v. Bishop (1869) 3 Daly, 109.
Nor can a corporation which has not been, and cannot be, admitted to practise, enforce any claim under a contract to perform legal services, even though such services were performed by lawyers hired by it. Re Bensel (1910) 68 Misc. 70, 124 N. Y. Supp. 726. And where voluntary associations are prohibited from practising law, it has been held that neither a mercantile agency composed of partners none of whom were members of the bar, nor an individual acting under an association name, can enforce a contract for the performance of strictly legal services. Buxton v. Lietz (1913) 139 N. Y. Supp. 46, affirming (1912) 136 N. Y. Supp. 829.
Massachusetts. Ames v. Gilman (1845) 10 Met. 239; Browne v. Phelps (1912) 211 Mass. 376, 97 N. E. 762.
(1891) 69 Miss. 408, 10 So. 581.
So, where the statutes allowing a lien for fees for counselors, solicitors, and attorneys are clearly limited to of ficers of that rank, one who conducts a suit without having been legally admitted as an attorney cannot have costs taxed in his favor for his services. Bullard v. Van Tassell (1848) 3 How. Pr. (N. Y.) 402.
It does not save the situation as regards individuals seeking to recover for legal services performed by them, that they have been admitted to practise in a foreign state, if they are unadmitted or unlicensed in the jurisdiction where the services are performed and recovery is sought. East St. Louis v. Freels (1885) 17 Ill. App. 339; Sellers v. Phillips (1890) 37 Ill. App. 74; Perkins v. McDuffee (1874) 63 Me. 181 (statute expressly applied to such a case); Ames v. Gilman (1845) 10 Met. (Mass.) 239 (holding such to be the law in Massachusetts under the express provisions of the Statute of 1785 and down to the taking effect of the Revised Statutes of 1836, even though the attorney had removed to and permanently resided in Massachusetts, but that compensation could be recov ered under the Revised Statutes by
such a person, there being no such express provision as in the earlier statute); Browne v. Phelps (1912) 211 Mass. 376, 97 N. E. 762 (holding that a statutory provision for fine or imprisonment of one who not having been admitted to practise in Massachusetts represents otherwise, applies to an attorney of another state who so represents, precluding recovery for legal services rendered in Massachusetts); Westcott v. Baker (1912) 83 N. J. L. 460, 85 Atl. 315. And see Martindale v. Shaha (1915) 51 Okla. 670, 151 Pac. 1019. However, where the statute merely provides that whoever not having been admitted to practise represents himself to be a licensed attorney shall be punished, it has been. held that such a statute does not bar a recovery by a licensed attorney of a foreign state for legal services rendered in the domestic state, where he first informed his client that he was not admitted in the local state and that it would also be necessary to have a local counsel to appear of record. BROOKS V. VOLUNTEER HARBOR (reported herewith) ante, 1086.
Nor is a right to recover compensation established by the fact that there was an express contract providing for compensation. Sellers v. Phillips (1890) 37 Ill. App. 74.
So, it has been said that the test as to the right of an attorney to recover for professional services is, 'was he admitted to practise at the time of the rendition of the services, and not, whether he was not licensed at the time of the making of the contract for future services." Goldenberg v. Law (1913) 17 N. M. 546, 131 Pac. 499, holding that an action for professional services could be maintained where the plaintiff had been admitted to practise at the time the services were performed, although the contract to perform same antedated the obtaining of his license.
And the general rule above stated cannot be circumvented when the services were purely legal, by seeking to recover as an "agent," and not as an attorney. Tedrick v. Hiner (1871) 61 Ill. 189.
Nor is it sufficient that the person 4 A.L.R.-69.
seeking recovery is an attorney at law if the statute requires other qualifications; as, for instance, payment of a privilege tax. McIver V. Clarke (1891) 69 Miss. 408, 10 So. 581; Hall v. Bishop (1869) 3 Daly (N. Y.) 109; Gourley v. McAloney (1897) 29 N. S. 319. But see Re Horton (1881) L. R. 8 Q. B. Div. (Eng.) 434, 51 L. J. Q. B. N. S. 309, 45 L. T. N. S. 451, 30 Week. Rep. 102, 46 J. P. 293, wherein it was held that the phrase, "acts and practices" in a statute prohibiting solicitors from recovering any fee for professional services without having in force at the time a duly stamped certificate, did not mean a single act, but related only to general practice. And see Wallace v. Harrington (1901) 34 N. S. 1, wherein it was held that a statute which merely provided that solicitors who have taken out yearly certificates may recover compensation for their services while they hold such certificates does not preclude recovery by them of their costs even though they have failed to take out the certificate required by the act. In Perkins v. McDuffee (1874) 63 Me. 181, it was held that it was not sufficient to show that plaintiff was a practising lawyer without proof of the qualifications required by statute.
And it seems that one who has been licensed to practise law, but has failed to enroll, cannot be subsequently enrolled nunc pro tunc so as to enable him to recover for legal services rendered after obtaining his license, but before enrolling. Thus in Ex parte Fellows (1840) 3 Ill. 369, it was held that where an attorney neglected to have his name entered on the roll of attorneys at the time he obtained his license, he could not afterwards have it enrolled nunc pro tunc, it being said that the granting of the motion could not benefit him even in a suit to recover for services performed as an attorney before his name was entered on the rolls. However, in Miller v. Ballerino (1902) 135 Cal. 566, 67 Pac. 1046, 68 Pac. 600, wherein the court, in discussing the question whether or not it was necessary in a suit for attorneys' fees to allege that the parties who rendered the services were attor
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.
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 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.
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
CHARLES GRANT, Appt.,
GRAHAM CHERO-COLA BOTTLING COMPANY.
North Carolina Supreme Court - October 23, 1918.
(176 N. C. 256, 97 S. E. 27.)
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
2. The practice of others engaged in similar business is not the standard by which to measure the care required of one bottling highly charged beverages for the trade.
[See 20 R. C. L. 50; 24 R. C. L. 192.]
burden of proof cautions against explosions.
3. One injured by the explosion of a highly charged drink bottled for the trade is not bound to prove what precautions the bottlers should have taken to prevent injury by the explosion. [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.:
This was an action for damages sustained from an injury causing the loss of an eye. The plaintiff alleged that the defendant sold him bottles containing ginger ale, "which, on account of the excessive pressure of gas, or by reason of some defect in the bottle, were dangerous as aforesaid, and likely to explode and to cause injury to any person handling them or being near them." The defendant's answer denied all negligence and averred that, in bottling the beverage sold to the plaintiff, it had used high class standard materials and bottles; that it had a standard upto-date plant, equipped with modern machinery; and that it used tests and checks to the end that excessive pressure should not be used. It pleaded contributory negligence on the part of plaintiff, in that plaintiff negligently submitted the bottled beverage to sudden and violent changes of temperature, which caused and were likely to cause the explosion of any bottle containing the carbonated beverage. The evidence was that the plaintiff was a merchant, and having purchased a number of bottles of ginger ale from the defendant at its factory in Graham, North Carolina, had placed the same in the refrigerator in his store. Shortly thereafter, going to the refrigerator to get a bottle for a customer, upon lifting the top, and without touching any of the bottles, one of them burst; one of the pieces striking the plaintiff's left eye, destroying the same. There was evidence that defendant
put up this and another carbonated beverage in his factory, and, both prior and subsequent to the plaintiff's injury, bottles had burst, injuring numerous other persons under similar circumstances. There was also evidence that these facts were known to the defendant, who also knew the manner in which the plaintiff used these bottles in his business, which was the usual and customary way in which merchants purchasing such merchandise used and handled it. The plaintiff complained that the defendant was negligent in bottling the beverage in such a manner that it was dangerous to handle, and defendant had failed in his duty to plaintiff in selling him bottles which, on account of the excessive pressure of gas, or by reason of some defects of the bottles, were dangerous to be near or to handle. The plaintiff introduced four or five witnesses who testified to numerous explosions of both of the carbonated beverages bottled by the defendant at its plant. Some of these explosions were shown to have occurred in the bottling; others, while the bottles were being crated and loaded; also, upon the road, while being hauled for delivery; and, also, in the hands of customers besides the plaintiff, after delivery. These explosions were not denied by the defendant, whose evidence showed explosions of these bottles put up by it and also of other carbonated beverages put up by other plants. The defendant put in evidence that its plant at Graham was modern, up-to-date, and equipped with good machinery, and that it