Bank of Alabama v. Martin

The elementary writers upon pleading •concur in laying down the law, that where the demand is merely of a pecuniary nature, and is founded upon a past or executed consideration, it is sufficient to declare upon the common indebitatus counts. [1 Chitty’s Plead. 316.] And such will be found to be the conclusion of the adjudged cases. Here the declaration is framed upon the idea, that the services for the performance of which the plaintiff had undertaken, had been performed, and that the defendant had refused to pay an equivalent therefor. The rule we have stated applies to such a case. In another point of view, the form of declaring which was adopted was clearly permissible. The defendant refused to submit to the arbitrament of a member of the legal profession the ascertainment of the value of the plaintiffs services; as the paper relied on as a contract contemplates. This indicated an unwillingness on the part of the defendant to have the extent of the liability of the Bank admeasured, as the plaintiffs proposed; and authorized the latter to recover upon a quantum meruit. The case of Randolph v. Perry, [2 Porter’s Rep. 376,] which was cited at the argument is entirely unlike the present. There the question was, whether a valid and intelligible contract in writing, could be set aside and -sub*620stituted by a verbal agreement without consideration, which was materially different in its terms; the Court very properly determined that it could not.

The contract which is evidenced by the plaintiffs’ letter does not authorize the Directors to fix the value of the plaintiffs’ services. They propose, that inasmuch as it could not be known what amount of business would be required of them, that their compensation should be left for future adjustment; and that they would receive what any gentleman of the bar would’consider reasonable. This, at most, is an agreement to arbitrate, and will not bar the action. In Stone v. Dennis, [3 Porter’s Rep. 239,] the Court say, “ it is clear, that a party, by agreeing to submit his case to arbitration, does not lose his remedy at law, unless at the time of the commencement of his suit there is an arbitration pending, or an award has actually been made ; and a contract absolutely to waive one’s right to go to law, is void, as against public policy.” See to the same effect Bozeman v. Gilbert, 1 Ala. Rep. N. S. 90.]

The agreement was to attend to the litigated business of the Bank, pending or- to be brought before the Courts from the time the plaintiffs were retained to the end of the year. If any of the cases should not be determined during that period, the plaintiffs were under no obligation to give further attention to them. The term for which they were engaged was expressly limited, and the contract different from that under which counsel are usually retained in this State.

The section of the act of February, 1839, which it is supposed inhibited the employment of the plaintiffs by the Directors of the Bank is as follows, viz :

“ That the several attorneys of the Bank of the State of Alabama and its Branches, shall hereafter receive an annual salary of one thousand dollars, payable quarterly, and no more.”

Previous to this act, the attorneys for the Banks were compensated by a stipulated fee, in each case, which was uniform, without regard to the amount of professional labor, or skill, which was required for its prosecution or defence. Such was the number of suits, during some years, by some of the Banks, that at least five times the prescribed salary was occasionally paid to an attorney. To remedy what the Legislature con*621ceived to be a prodigal expenditure of money, the act in question was passed. It applies alone to the regular ^attorney, who is elected by the Directors, as an officer in the respective Banks; and does not, expressly or by implication, restrain them in the employment of such other professional assistance as the interest of the Bank may require. The pouter of the Directory of the Bank of the State would be plenary, independent of any express delegation by the Legislatnre; but they are expressly authorized by its charter to appoint such officers, &c. as shall be necessary for executing the business of the corporation. [Aik. Dig. 57.J It is important that they should be invested with such an authority; for it might so happen that the Bank would require the services of an attorney at law in another State, or in different counties of this State at the same time. Unless, under such circumstances, the Directors could employ and compensate as many professional gentlemen as the interest of the Bank required to be retained, the business of the corporation might very materially suffer. Whether the Directors, in entering into the contract with the plaintiffs, did that which was expedient and proper, under the circumstances, is a question not submitted to us, but the inquiry is, did they exceed their powers ? On this point we have expressed our opinion.

Our conclusion upon the entire case is, that the judgment of the Circuit Court should be affirmed.