1. Where, as here, the petition alleges that the plaintiff as an attorney at law was employed to represent the defendant on a criminal charge, no fee having been agreed upon in the contract of employment, such an attorney is entitled to recover on quantum meruit for the reasonable value of lawful services rendered the defendant as such attorney; and such a petition is not, therefore, subject to general demurrer.
2. Where such petition in its original form alleged, as services rendered by the attorney to a client, some illegal acts and other acts that were legal and necessary in connection with his employment, the original petition may be amended by striking therefrom the illegal services, the original petition containing enough to amend by.
3. Where such an amendment is allowed and filed, it does not constitute a new cause of action.
Harold Karp sued the defendants, Mrs. Guta Iteld, H. Iteld, and their son, Julius Iteld, in the City Court of Decatur, alleging a contract of employment for legal services in connection with the arrest of Julius Iteld on a criminal charge, the performance of services, and non-payment, and seeking recovery on a quantum meruit basis. Material portions of the petition are as follows, the italicized wording being that subsequently deleted by amendment:
"3. Petitioner shows that on or about the 24th day of September, 1951, the defendant, Julius iteld, was arrested . . . 7. Petitioner shows that the defendants engaged petitioner for the purpose of representing Julius Iteld and agreed to pay petitioner for said services . . . 9. Petitioner shows that for a period of six days following thereafter petitioner made many calls, many trips, and spent many hours in connection with the investigation . . . 10. Many of these conferences and trips were made into the late hours of evening and required petitioner to expend much time away from his practice in order to completely and quickly investigate said charges made against the defendant, Julius Iteld, and to prevent his being formally charged with the offense of rape, said charges being presented before the Grand Jury of Fulton County for indictment . . . 12. Petitioner shows that he diligently thereafter continued to confer and deal with the principals in said case . . . until such time . . . that petitioner was able to influence the said minor's relatives and guardian not to press charges against the young men in question, of whom the defendant, Julius Iteld, was alleged to have been one of her attackers. Petitioner shows that the reasonable value of the services rendered in connection with preventing said Julius Iteld from being formally charged with the offense of rape and a reasonable fee for petitioner's preventing the possibility of the defendant receiving unfavorable publicity as a result of the accusations, whether true or not, and whether later substantiated by evidence or not, is $5000. 14. Petitioner shows that, as a direct result of his efforts, petitioner has prevented any unfavorable publicity to the defendants herein named; and petitioner has secured the release and discharge of the defendant, Julius Iteld, from the custody of the arresting officers. 15. . . . Such services rendered, at the request and with the consent of the defendants herein named, were reasonable and necessary to accomplish the purposes intended, thereby handling the release and discharge of the defendant from all charges regarding the accusation made by the said fourteen-year-old minor."
A general demurrer was filed, and, before hearing, the plaintiff amended by striking the passages italicized and adding allegations that the plaintiff diligently investigated the case, conferred and dealt with the principals therein, has secured the defendant's release from custody; that a reasonable fee for the services rendered in connection with the investigation, which were necessary in order to adequately represent the defendants, is $5000; and that demand has been made and payment has been refused.
(After stating the foregoing facts.) 1. It is earnestly contended by able counsel for the plaintiff in error that the general demurrer and objections to the amendment should have been sustained upon the theory that the original petition shows an express contract between the parties to perform an illegal service, i.e., to prevent Julius Iteld from being formally charged with and convicted of a criminal offense; to influence the minor prosecutrix and her relatives and guardian not to press charges against him; that the plaintiff did in fact perform illegal acts, i.e., he used his influence to cause the authorities to book the defendant on a less serious charge to prevent the grand jury from returning a true bill, and also influenced the guardian and relatives of the girl not to press charges; that, in consequence, the petition shows on its face that the contract was for the performance of illegal acts; and that no rights could thereby accrue to either party. If we agreed with this contention as a premise, the conclusion would follow as a matter of law. See Code, 4-201, 20-504, 20-305; Frick v. Moore, 82 Ga. 159 (8 S. E. 80); Rhodes v. Neal, 64 Ga. 704 (37 Am. R. 93); McConnell v. Cherokee National Bank of Rome, 18 Ga. App. 52 (88 S. E. 824); Abbott v. Free, 36 Ga. App. 191 (136 S. E. 108).
However, the contract of employment, as alleged in paragraph 7, is merely, "for the purpose of representing Julius Iteld," and an agreement to pay for these services. This of itself is not illegal. It is a primary function of attorneys to represent clients who are in legal difficulties. The contract of employment as alleged does not suggest that the attorney was retained to represent his client in an illegal manner, and it will not be presumed that a contract which appears lawful on its face was in fact made for an unlawful purpose. Pursuant to this contract, it is alleged that the attorney proceeded to do certain acts which--assuming them to be unlawful--were nevertheless not a part of the original contract of employment so far as appears from the petition. Subsequently the plaintiff struck the allegations as to questionable acts done by him for which he sought compensation, and left allegations as to other acts, such as conferences, investigations, and so on, and sought recovery solely for these acts. The contract of employment being a lawful one for legal services, and no amount being specified therein, the plaintiff is entitled to be paid on a quantum meruit basis for all acts lawfully done thereunder which reasonable diligence and skill required him to do to properly represent his client. See Code, 3-107; O'Neal v. Spivey, 167 Ga. 176 (3) (145 S. E. 71).
In Evans v. Hartley, 57 Ga. App. 598 (196 S. E. 273), it was held that, where an attorney sought recovery for services under a contract which was illegal in part, it was error not to allow an amendment to the petition seeking recovery on a quantum meruit basis for that part of the services which was legal. On the other hand, it was held in Sapp v. Davids, 176 Ga. 265 (168 S. E. 62, 85 A.L. R. 1361), that where the original contract was entirely void as contrary to public policy in its totality, an amendment seeking recovery on quantum meruit for the same services set out in the contract would not be allowed. Had the entire contract here been for the unlawful purpose of quashing the prosecution, it could not have proceeded, on a quantum meruit basis or otherwise. Since it appears, however, that the contract itself was merely for the legal purpose of representing a client charged with crime, the plaintiff may recover for the usual and necessary lawful services performed in connection therewith although it goes without saying that he cannot recover for acts contrary to public policy, even though done on behalf of his client.
2. "A petition showing a plaintiff and a defendant and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action shall be enough to amend by." Code, 81-1302. "Amendment is a resource against waste. The declaration must contain enough from the beginning to indicate a subject matter for adjudication, and to classify it as tort, contract, or something over which the court has jurisdiction. But the subject matter need not, as first described in the declaration, be a complete cause of action, though it must be some kind of subject matter of which a cause of action, if fully developed, would or might consist. And it must go further than this; the declaration must enable the court to see both the terms of comparison to be used in ascertaining the exact difference between what is in it and what would under the law be good. With both these terms the amendment offered must be compared, and if it would fill the gap, there is, so far as mere quantity is concerned, enough to amend by." Ellison v. Georgia R. Co., 87 Ga. 691, 707 (13 S. E. 809). Applying these tests, the original declaration here sufficiently stated a plaintiff, a defendant, and a subject matter (a contract to perform legal services), and accordingly contained enough to amend by.
3. As to the qualitative restrictions on amendments--"Any cause of action whatever would be new and distinct if no trace of it could be found in the declaration." Ellison v. Georgia R. Co., supra. The amendment here sought to recover "the reasonable value of the services rendered in connection with investigating all of the facts in said case which were necessary for an attorney to adequately represent said defendants," which merely amplified the allegations of the original petition, to the effect that the attorney represented the defendant in the matter and investigated the case. No special demurrer attacked the amendment on the ground of lack of particularity. The amendment did not add a new cause of action, and was not objectionable for any reason assigned.
The trial court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.