St. Clair County IL Archives Court.....Cornelius, Vs. Wash 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:36 pm

Source: Reports Of Cases Illinois
Written: 1819-31

SUPREME COURT of the STATE OF ILLINOIS.

DECEMBER TERM, 1825, AT VANDALIA.

Present* THOMAS C. BROWNE, SAMUEL D. LOCKWOOD, THEOPHILUS W. SMITH; Associate 
Justices. 

Joseph Cornelius, Appellant, v. Robert Wash, Appellee. 

APPEAL FROM ST. CLAIR.

Where the relation of client and counsel is created, the counsel must 
contribute his own legal knowledge and assistance in the suit, and aid in 
conducting it to a final determination.

The confidence reposed in counsel is of a personal nature, and can not be 
delegated to another without the consent of the client. The client is entitled 
to receive the identical legal services he contracted for.

Wash sued Cornelius before a justice of the peace in St. Clair county, for his 
services as attorney and counsellor, and recovered a judgment against him, 
from which judgment Cornelius appealed to the circuit court of said county. 
Trial and verdict in the circuit court for Wash for $59 in damages. A motion 
was made by defendant for a new trial, which was overruled, and thereupon a 
bill of exceptions was taken, from which it appears, that on the trial of the 
cause in the circuit court, the plaintiff, Wash, read in evidence to the jury, 
the following obligation, viz.:

Belleville, Nov. 9, 1819. Whereas, I have employed R. Wash in the suit 
instituted by George, a black man, against Robert Whiteside and F. Bradshaw, 
for the recovery of his freedom, I hereby promise and oblige myself to pay to 
said R. Wash or order, the further sum of fifty dollars, as witness my hand 
and seal.

Joseph Cornelius.   [Seal.]

as the foundation of his action, and proved by H. Starr, that the suit in the 
obligation mentioned, had been removed to the Randolph circuit court, and was 
there tried in the fall of 1820, and decided in favor of George, the black man 
in the obligation mentioned, and his right to his freedom thereby established; 
but the plaintiff did not prove that he rendered any service in said suit as 
counsellor or attorney for said George. This was the evidence on the part of 
the plaintiff. The defendant, by his counsel, then moved the court to instruct 
the jury as in case of a nonsuit, because the plaintiff's evidence did not 
show that he had rendered any service in said suit as attorney for George, and 
was not entitled, therefore, to recover on the obligation. The court refused 
to give the instructions asked for, but instructed the jury that if they 
believed that the obligation imposed on Wash the duty of rendering services in 
the action as attorney, they should find for the defendant; but if they 
believed that, by the contract specified in the obligation that Wash was to 
have the fifty dollars on George's recovering his freedom, whether Wash 
rendered services in the cause or not, then they must find for the plaintiff; 
and the court left the construction of the contract thus far, to the jury. Mr. 
Starr was then cross-examined by the defendant, and stated that the suit in 
question was tried in the St. Clair court at the June term, 1820; that, he had 
no recollection that Mr. Wash was at court, or had any thing to do with the 
management of the cause, but that Mr. Peck appeared for George and managed the 
cause with ability; that a verdict was rendered for George for more than four 
hundred dollars, and that the verdict was set aside and a new trial awarded, 
and that the cause was removed to Randolph county, and there tried as above 
stated; that, he appeared for George as attorney there, that George employed 
him, and that Mr. Wash was not there. It was further proved that the suit in 
the obligation mentioned, was commenced in the St. Clair court in July, 1818, 
by the late Mr. Mears, and in all the steps taken in the cause, Wash's name no 
where appeared as attorney. It was further proved by D. Blackwell and J. 
Turney, that on the trial in June, 1820, on calling the cause, that Mr. Wash 
did not appear on being called, and that Mr. Peck and Mr. Carr, both lawyers, 
voluntarily told the court that they would attend to the cause for Mr. Wash, 
and they did attend to it at that time. It was further proved that Mr. Carr 
became the partner of Mr. Wash in the spring of 1820, but there was no proof 
that either Mr. Peck or Mr. Carr, was employed by Mr. Wash to represent him in 
the cause. The defendant proved by his own oath, that Carr exacted a fee from 
him for those services of twenty-five dollars, which he had paid, and said 
nothing about his being concerned with Wash as a partner. The plaintiff then 
gave in evidence the following writing under seal, viz.:

Belleville, Nov. 9, 1819. Three months after date I promise to pay R. Wash, or 
order, sixty dollars for value received, as witness my hand and seal, Joseph 
Cornelius, [seal.]

and proved that it had been given to him by defendant at the same time, to 
secure a fee in the same suit for his services as attorney, &c, and that at 
the last term of the St. Clair court an action was tried on the note between 
the present parties, and that defendant relied on a failure of consideration 
on the ground that Wash did not render any services, and the jury found a 
verdict for him, Cornelius. Here the evidence closed, and the court instructed 
the jury further, that although the plaintiff did not in person attend to the 
suit for George, yet if Peck and Carr did attend to it for him as well as Wash 
could have done, Wash would have a right to recover, and they ought to find 
for him. The defendant excepted to this opinion, and appealed to this court.

Opinion of the Court by Justice Lockwood. Two questions are presented in this 
case: 1. What is the true construction of the obligation made by the plaintiff 
in error to the defendant in error? 2. Ought the instructions prayed for to 
have been given to the jury? On the first point, the court are of opinion that 
by the true construction of the contract of the parties, the relation of 
client and counsel was created, and that if became necessary for Mr. Wash 
either to have contributed his legal knowledge and assistance in the suit of 
George against Witeside and Bradshaw, or have been ready and willing at the 
trial to have aided and conducted the suit to its final termination. The 
confidence reposed in counsel is of a personal nature, and can not be 
delegated without the consent of the client. The evident object of the party 
in making this contract being to obtain the legal services of Mr. Wash in 
prosecuting the suit, the court ought to have instructed the jury that, unless 
they believed Cornelius had dispensed with the personal services of Mr. Wash, 
they ought to find for Cornelius.

In relation to the second charge given to the jury, to wit: "that although the 
plaintiff did not in person attend to the suit for George, yet if Peck and 
Carr did attend to it for him, as well as he, Wash, could have done, Wash 
would have a right to recover." If the court is right in their construction of 
this contract, this instruction was clearly wrong. In the employment of 
counsel to manage a cause, the client is governed by a variety of 
considerations which relate to the character, learning and skill of the 
lawyer, and whether the client exercises a sound judgment in his selection, is 
a matter in which he alone is interested, but he is entitled to receive the 
identical legal services he has contracted for. It may, with propriety, be 
asked, by what rule could a jury decide whether Peek and Carr did render the 
same services that Wash might have done, had he been present? It is only 
sufficient to state the question to show the utter impracticability of its 
being determined by a jury. They can have no data on which to predicate an 
opinion. The judgment must be reversed with costs, with permission to the 
defendant in error to have the cause remanded to the circuit court for further 
proceedings, not inconsistent with this opinion. (1)

Judgment reversed.

Blackwell, for plaintiff. 

Starr, for defendant.

------------------
* Wilson, C. J., was absent the whole of this term.

(1) If attorneys who are co-partners, accept a retainer, the contract is 
joint, and continues to the termination of the suit, and neither can be 
released from the obligations or responsibilities assumed, either by a 
dissolution of their firm, or by any other act or agreement between 
themselves. Walker v. Goodrich, 16 Ill., 341.

An attorney agreed with a father to institute proceedings for the division and 
sale of land held by the father and his daughter in common, and the father 
agreed to pay for such services five hundred dollars when the land should be 
sold and the purchase money become due, or the usual fee in case the attorney 
should fail to procure the division. The father died after an order for the 
sale had been entered by the court, but before the sale had taken place; and 
the guardian of the daughter had the suit dismissed. Held, that the attorney 
was only entitled to the usual fee for his services. Bunn et al. v. Prather, 
et al., 21 Ill., 217.

Contingent fees to attorneys are not against law or public policy. Newkirk v. 
Cone, 18 Ill., 449.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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