counselor at law of New Jersey, whose advice was available to defendant when the contract was entered into, and to whom plaintiff's services under the contract were directly and immediately rendered. No fraud inducing the making of the contract is charged. No testimony respecting the propriety of the terms of the contract was offered by counsel for defendant under whose directions plaintiff's services were rendered. Defendant seeks no return of any money paid to plaintiff under the contract, and defendant's plea of invalidity of the contract goes only to the construction of it contended for by the plaintiff.
Assuming there had been evidence in this case by which the contract between the parties could have been appraised for fairness, neither the Hughes nor the Soper case supports defendant's contention that the contract is invalid. Both Hughes and Soper were equity cases. In Soper the bill was to set aside a deed to the defendant attorney conveying an interest in grantor's lands by way of compensation to the attorney for services rendered to the grantor if they should prove successful in the litigation which he was requested to undertake. The Court refused to set aside the deed holding that the value of the interest conveyed was fair in the light of the services rendered by the attorney to the grantor, at the suit of the complainant, grantor's donee of a part interest in the real estate. The Court found that the client fully understood the effect of what she was doing. She subsequently ratified the fee contract by executing the deed, and there was no evidence of concealment or overreaching on the part of the attorney. In Hughes the Chancery action was to annul an agreement for attorney's fees and to recapture part of the fees already paid. A judgment was entered, 8 N.J.Super. 351, 72 A.2d 901, that the attorney forego any additional charge against the client over and above the amount already received by the attorney. On appeal the judgment was reversed. The Appellate Division, while recognizing that a court of equity may inquire into the fairness and reasonableness of a fee contract between an attorney and a client, and that in case of part payment the court may find that the attorney has been adequately compensated, adds, 14 N.J.Super. at page 65, 81 A.2d at page 397:
'Yet a contract of this nature, fair and reasonable in its terms, and fairly agreed to by the client after mature deliberation, with full knowledge of the situation, should not be carved away by the court except in an entirely clear case.'
This Court recognizes that equitable defenses may be presented in an action at law such as the case at bar. The defendant has not interposed a counterclaim to annul, modify, cancel or reform the contract in suit. Defendant cannot be heard to ratify the contract if it be construed as the defendant would have it, and assert its invalidity if construed in accordance with the plaintiff's contention. Assuming that there had been such a confidential relationship between the plaintiff and the defendant in this case that the burden of proving fairness of the fee contract rested upon the plaintiff, defendant cannot charge failure to discharge such a burden if proffered testimony in support of the fairness of the terms of the contract was excluded upon defendant's objection and no testimony was offered by the defendant from which an inference could be drawn that the contract was vulnerable to attack for fraud, concealment or overreaching.
Assuming that defendant effectively raised the issue of fairness of the contract by its affirmative defenses, that issue was for the Court, not for the jury, to resolve. The completeness of the disclosure of the circumstances surrounding the making of the contract and the absence of any evidence tending to support the defendant's contention that the contract was unfair compels the conclusion that the agreement of the parties, insofar as it provided for a contingent fee to be paid to the plaintiff, was entirely valid and enforceable. If, however, the defendant is prepared to produce evidence that the amount of the contingent fee provided in the contract is so excessive or unreasonable as to compel a finding that the plaintiff intended to over-reach the defendant in insisting upon the inclusion of such a provision in the contract, this Court, sitting in equity, without a jury, will afford an opportunity for the presentation of such evidence, provided notice of intention to present such evidence, containing a summary thereof, is served upon the plaintiff and filed in this cause within ten days next succeeding the filing of this opinion. Should the defendant fail to avail itself of this leave in the manner herein directed, plaintiff's motion for judgment against the defendant for $ 13,000 and interest thereon from February 21, 1957, must prevail. In such event, defendant's motion will be denied. An order may be presented in conformity with the views herein expressed.
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