#### 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 E. 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.] *99as 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 *100exacted 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 E. Wash, or order, sixty dollars for value received, as witness my hand and seal, t 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, Ac., 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 Peek 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 it became necessary for Mr. Wash either to have contributed his legal knowledge and assistance in the suit of George against Whiteside 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 jtiry, 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 *101of 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 Peck 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)

Blackwell, for plaintiff.

Starr, for defendant.

Judgment reversed.

(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, cither by a dissolution of then- 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 lather 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.