§ 430. An attorney or counsellor is bound by the same rule of diligence as other business men; and like the members of the medical profession, he must bring to the discharge of the duties assumed by him, the ordinary skill of prudent men engaged in the same calling. He Пе does not guaranty the accuracy of his opinion upon difficult questions of law, or the success of a suit or proceeding;2 and he does impliedly hold himself out to the world as qualified for the business, and familiar with that branch of it pursued by him.3 He undertakes to transact the business entrusted to him, with a reasonable knowledge of the law, and with diligence; and though seldom held liable for errors of opinion or mistakes in the choice of remedies, ho is occasionally condemned in the end of the second day; and the action was brought for wrongfully dismissing the plaintiff. Wells, J.: "When a skilled laborer, artisan or artist is employed there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes-Spondes peritiam artis. Thus, if an apothecary, a watchmaker, or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. The public profession of an art is a representation and undertaking to all the world that the professor possesses the requisite ability and skill. An engineer is retained by a railway company, for a year, to drive an express train, and is found to be utterly unskillful and incompetent to drive or regulate the locomotive-are the railway company still bound, under pain of an action, to entrust the lives of thousands to his dangerous and demoustrated incapacity? A clerk is retained for a year to keep a merchant's books, and it turns out that he is ignorant, not only of bookkeeping, but of arithmetic-is the merchant bound to continue him in his employment?" See Jenkins v. Betham, 15 Com. Bench, 168, 189. Losec v. Clute, 51 N. Y., 494. Taft v. Inhabitants of Montague, 14 Mass., 282. In this case the plaintiff brought his action to recover on a special contract to build for the defendants a stone bridge for a price agreed upon; and it appearing that the plaintiff had used improper materials, and constructed the bridge so defectively that it gave way and soon after proved worthless, it was held that he could not recover on the contract because he had not fulfilled it on his part, nor on a quantum meruit, because the defendants had received no benefit from the plaintiff's labor. The bridge was built in the Autumn of 1810, and it stood until the Spring of 1812, having been occasionally repaired during that time. In cases of this kind the coutractor is not allowed to ignore the contract and recover the value of his services without reference to it; unless it appears that the work was carried on with the knowledge and assent of his employer, or accepted by him after it was finished. Jewell v. Schroeppel, 4 Cow., 564. 1 Gleason v. Clark, 9 Cow., 57. Bowman v. Tallman, 27 How. Pr., 212, 273; S. C., 40 Id., 1; Purves v. Landell, 12 Clark & Finnelly, 91; Parker v. Rolls, 14 C. B., 691; Wilson v. Russ, 20 Me., 421; Gambert v. Hunt, 44 Cal., 542; Walpole v. Carlisle, 32 Ind., 413. * Donaldson v. Holdane, 7 C. & T., 762; Gambert v. Hunt, 44 Cal., 542. damages for omissions, blunders and negligence; for inattention to the rules of practice; for the omission of an act necessary to the protection of his client; for delays in the commencement of an action; for a failure to prepare a cause for trial; and for similar neglects of duty whereby his client is injured. He is also liable for the neglect of his clerk, and for the misconduct of those employed by him in the transaction of his business.2 § 431. In England the attorney does, but the barrister or counsellor does not, enter into a contract with his client; and hence while the attorney may recover of his client a compensation for his services, the counsel cannot. He accepts a fee as the Roman patron did of his client paid to him in advance as a gratuity or present.3 With us the relation, though one of honor and confidence, is also one of contract; and a counsel as well as an attorney may recover the value of his services, being liable like any other man for negligence or any breach of his contract. Valid and defensible as the English rule may be, in a society deeply penetrated with the sentiments appropriate to and inspired by her recognized ranks in life, it is quite evident that the theory of contract is nearer to the truth and more consonant to the better sense and spirit of American society. The sense of honor is not weakened when it is married to a sense of duty. The duty of the advocate or counsellor arises out of the contract created by his retainer and the relation thus established between him and his client; just as the duty of an attorney springs from his retainer. The fact of a retainer being proved, as it may be in various ways; as by showing a verbal request, or the actual conduct of a cause with the client's knowledge, or any circumstances from which a retainer may 1 Parker v. Rolls, 14 C. B., 691; Godefroy v. Dalton, 6 Bing., 463; Knights v. Quarles, 2 Bro. & B. 102; Cooper v. Stevenson, 21 L. J. N. S. (Q. B.), 292; Walpole v. Carlisle, 32 Ind., 415; Stevens v. Walker, 55 Ill., 151; Long v. Orsi, 18 C. B., 610; A. B.'s estate, 1 Tucker (N. Y.), 247; Arnold v. Robertson, 3 Daly, 293; Hopping v. Quinn, 12 Wend., 517, 519. 2 Floyd v. Nagle, 3 Atk., 568; Rhines v. Evans, 66 Penn. St., 192; Bradstreet v. Everson, 72 Penn. St., 124. The attorney's clerk in his absence may transact the ordinary business of the office-such as is usually entrusted to him: Power v. Kent, 1 Cowen, 211; Sibley v. Waffle, 16 N. Y., 183; he cannot discontinue an action; Irvine v. Spring, 35 How. Pr., 479; S. C., 7 Robt., 293; or give a discharge of a debt without satisfaction; Carter v. Talcott, 10 Vt., 471. 32 Broom & Hadley's Comm., 19-30, Amer. Ed. 4 Stevens v. Adams, 23 Wend., 57; S. C., 26 Wend., 451; Balsbaugh v. Frazer, 9 Penn. St., 95; in re Paschal, 10 Wallace, 483. The English rule is held in New Jersey; Seeley v. Crane, 3 Green (N. J.), 35. Fray v. Voules, 1 E. & E., 839; Prestwich v. Poley, 18 C. B. N. S., 806; Chown v. Parrott, 14 C. B. N. S., 74. 1 be fairly inferred; the counsel or attorney may recover the value of his services, proving the same where there is no contract fixing the compensation, as in any other action for services.2 If in such an action the defence goes to destroy the plaintiff's claim entirely, or to lessen the amount, it may be given in evidence under a general denial; the value of the services is in issue. An attorney cannot recover for services rendered valueless through his negligence; and he cannot recover costs against his client for services in recovering a judgment which is set aside for irregularity, or the costs of opposing the motion to set aside his irregular proceedings, or money paid to satisfy the cost of a judgment of discontinuance suffered through his negligence or ignorance. The attorney is bound to know what the law is; and if having a note placed in his hands for collection, he bring a suit on it on the last day of grace, the bringing of such suit will be imputed either to his ignorance or negligence; and in either case he cannot recover against his client for such fruitless services.5 § 432. The civil law provides for the creation of religious corporations, and in many ways fosters and protects our churches on account of the influences springing from them as sources of civil virtue and public morality. It recognizes them as charities, entitled to legal protection. The separation declared in our fundamental law between the church and state, is not hostile but friendly to religion; it is in spirit an instituto of freedom. The civil law does not therefore prescribe to our minis 142. Manchester Bank v. Fellows, 28 N. H., 302; Hirshfield v. Landman, 3 E. D. Smith, 203; Pixley v. Butts, 2 Cow., 421; Hotchkiss v. Le Roy, 9 John. R., 2 Garfield v. Kirk, 65 Barb., 464; Smith v. Davis, 45 N. H., 566; Webb v. Browning, 14 Mo., 353; Hadley v. Ayers, 12 Abbott N. S., 240. 3 Schemerhorn v. Van Allen, 18 Barb., 29. 4 Gleason v. Clark, 9 Cow., 57. Hopping v. Quin, 12 Wend., 517; Gleason v. Clark, supra; Nixon v. Phelps, 29 Vt., 198. 6 Our statutes are framed to protect as well as create religious corporations: The People et al. v. Tuthill, 31 N. Y., 550. And the general law of the country is animated by the same spirit. See Judge Strong's "Discourses on the Relations of Civil Law to Church Polity, Discipline and Property," and Hoffman's Ecclesiastical Law. 7 "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of the press.”— Article I. of the Amendments to the U. S. Constitution. The words of the State Constitution are equally explict: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief." -Art. L, § 3. ters and clergyman any rule of care and diligence in their calling. Having created the religious corporation, it leaves the body free to make contracts to accomplish the purposes of its being; and enforces these contracts according to their true intent and meaning. Under a contract for the services of a minister or clergyman referring to the discipline and government of the church, the court is at liberty to examine the church polity so far as to determine the question of performance under the agreement; and it is adjudged that a failure in readiness and ability to perform, arising from misconduct and immorality, authorizes a dissolution of the contract. A severance of the relation between the minister and the society, in the manner prescribed by the rules of the body, terminates the contract. The law will not permit the property of the corporation to be used, for the support of a minister, while he is under a sentence of deprivation.3 § 433. Contracts for Personal Services. Equity does not decree a specific performance of a contract for personal services. Two reasons are assigned in refusal of this form of remedy; namely, respect for personal freedom, and the impossibility of enforcing the performance of a stipulation for personal services according to the true intent of the contract. Thus, a court of equity will not enter a decree to compel an actor to fulfill his engagement for a season or for a term of years; or to compel a person to sing in an opera; the court will not decree an active performance; but it will (in England) decree a negative performance, where a person has agreed not to act or sing in any other theatre or opera for a given time; and will enjoin him from so acting or singing pending the suit. But the remedy so full of vigor, has been refused in this State pendente lite, where an injunction was prayed for against an G 1 Moore v. Fox, 10 John. R., 244; The First Religious Society of Whitestown v. Stone, 7 John. R., 115. A "call" to a minister is the act of the society or corporation; Paddock v. Brown, 6 Hill, 530. It is for an indefinite time; Sheldon v. Easton, 24 Pick., 281. 2 Dutch Church of Albany v. Bradford, 8 Cowen, 457; Dieffendorf v. Reformed Calvinist Church, 20 John. R., 12. Robertson v. Bullions, 9 Barb., 64; S. C., 11 N. Y., 243; and cases cited in those decisions; Gram v. The Prussia, &c. German Society; 36 N. Y., 161; People v. Rector &c. of Church of the Atonement, 48 Barb., 603; Youngs v. Ransom, 31 Barb., 49. 4 Haight v. Badgeley, 15 Barb., 499; see Marsh v. Blackman, 50 Barb., 329. Hamblin v. Diuneford, 2 Edwards Ch. R., 529; Morris v. Colman, 18 Ves., 437; Clarko v. Price, 2 Wilson, 157; Kemble v. Kean, 6 Sim. R., 333. • De Rivafinoli v. Corsetti, 4 Paige Ch., 264; Sanquirico v. Bendetti, 1 Barb., 315. 7 Lumley v. Wagner, 1 De G. M. & G., 604; 13 Eng. L. & Eq., 252; Rolfe v. Rolfe, 15 Sim., 88. artist, a painter, who it was alleged, had agreed to give his exclusive time and services to the firm of which he was a member, and there was some conflict in regard to the substance of the contract. And in the absence of an explicit negative agreement, an injunction will not be granted with a view to enforce an affirmative performance of the contract.2 § 434. An artist's contract to execute a work of art is strictly personal; he is not permitted to perform his agreement to paint a portrait, by the hand of another. And the same rule applies to all contracts for personal services. The employed has therefore no assignable interest in the contract so long as it remains wholly executory. After the services have been performed, the demand therefor is assignable like any chose in action; and a cause of action for the breach of the contract is assignable. On the other hand, the employer may assign a contract for general services; or for materials and work involving skill, like the building of a boat. But he cannot assign contracts for menial services, or domestic services that are to be rendered in the employer's family; and he cannot assign a contract of apprenticeship, since that involves a personal trust; and yet the master's engagement under the assignment will bind him, and the apprentice assenting to the transfor will not be permitted to recover of the assignee for his services.10 § 435. A party is not permitted to abandon, or to arrest the execution of a contract which can be specifically enforced by a decree in equity 11 a contract under which the damages cannot be established or ascertained with exactness, or until the lapse of a long time or the death of one of the parties a contract under which a compensation in damages does not furnish a complete and satisfactory remedy." 12 Under an ordinary contract for work and materials, the employer has a right to stop short and countermand the order given for the work; and the employee has no right to go on after the countermand and in 1 Frederieks v. Mayer, 1 Bosw,, 227; 13 How. Pr., 566. 2 Butler v. Galletti, 21 How. Pr., 465. Francois v. Ocks, 2 E. D. Smith, 417. ¤ Horner v. Wood, 23 N. Y., 350, contract for the labor of convicts in a prison. 7 Osborn v. Thomas, 46 Barb., 514, Futrill v. Vaun, 8 Md,, 402; Hall v. Gardner, 1 Mass., 172. 9 Nickerson v. Howard, 19 John., 113. 10 Williams v. Finch, 2 Barb., 208. 11 Marsh v. Blackman, 50 Barb., 329. 12 Rhodes v. Rhodes, 3 Sandf. Ch., 279. 1 Phillips v. Berger, 2 Barb., 608; S. C., 8 Barb., 527. |