Bogliolo v. Scott

5 Mo. 341

• Court: Supreme Court of Missouri
• Decided: May 15, 1838
• Status: Published

Opinion

Tompkins, Judge,

delivered the opinion of the eourt.

Scott brought his action of assumpsit in the circuit court against Bogliolo, and there had a judgment; to re-reverse which, Bogliolo appeals to this court.

The evidence of the case is, that Scolt attended to a su't brought against the appellant by Smith, administrator of Campaneli. It was proved that, at the request of the wife of the appellant, Alvan Cook wrote to Scott, the appellee, to retain him as his counsel in this case; that Cook afterwards informed the appellant that he had written the said letter, and that the appellant approved the act of Cook. It was also proved that the appellant sent one Napoleon Lisicier to Ste. Genevieve to see Scott, the appellee, on the subject of attending to the said cause as his attorney, and that Scott told Lisicier that he would not attend to the cause for Bogliolo unless he would give him his note for two hundred dollars, with security; that Lisicier in a few days returned to New Madrid, told Bogliolo what Scott had said, and that Bogliolo told Lisi-cier he would write to Scott on the subject. The ap-pellee, also, by permission of the court, read in evidence a letter not directed to any person by name, the signature to which was proved to be in the hand writing of Mattie Bogliolo, and the body of the letter in the hand writing of James Evans, an attorney on the part of Bogliolo in the said cause. It was also proved that the said letter was in the possession of Scott, and had by him been delivered to his attorney in this suit previous to the commencement thereof; it was in these words, to wit:

“New Madrid, March 1st, 1836.

“Near Sir: When I spoke to you to attend as my lawyer in .the suit of Smith, administrator of Campaneli, iuy calculation was to pay you your demand, though no written contract was signed. 1 now understand by Mr. Lisi-cier, that you do not consider yourseli employed, as no specific fee has been promised. I now wish you to attend to that case as one of my attorneys, for which I will pay you two hundred dollars, your fee. I wish your strict attention, as the case is an important one to me.”

(Signed) “MATTIE BOGLIOLO.”

The reading of the letter was objected to by the defendant.

It was proved on the part of the defendant, appellant in tins court, that Campaneli, in his lifetime, instituted a suit against the present appellant, on the same note, and that the present appellant employed Greer W. Davis to attend to the suit for fifty dollars. That case was dismissed. Smith took out letters of administration, and commenced the suit, which Scott, the appellee, was employed by Bogliolo to attend to, and which is the subject matter of the suit now pending. No other evidence was-Miered by the defendant (appellant here,) and after judgment was given against him, he moved for a new trial, because,

fee^On the trial offered in ev-ldeno.e ,a letter, tenMoftike contract, the signa-^'as jvng 0® hiTclient^ the def., but no£dl~ that"!”110' being found possession of letter eon-espond-ing with those abunde, pi tf. had declared be the onl7, ld.Wunder-take the case, it was properly ad-mittedtothejurJr- $200 damages were not casebwhen of $200 ed to have been tvreenthepattUs"S?s and moreover seemed not to reasonable com-”' pensation for the services rendered,

1. The verdict is against evidence and the weight evidence. 2. The letter of Bogliolo was improperly admitted to be read in evidence on the trial of the cause. 3. The damages are excessive.

Had the letter given in evidence been directed t,o John Scott, no person could have entertained a doubt about the liability of Bogliolo to pay the demand of Scott, is not very easy to find any good rea’son to doubt whether lie wrote that letter to Scott. 1. Scott had the letter in possession. Had it been written to another person, Bogiiolo ought certainly to have been able to show that matter, and the envelope might, in all probability, have been produced, or its loss accounted for. But Cook, at the request of Bogliolo’s wile, had written to Scott to attend to the same suit, and he, on being informed of had approved the act. Cook also says, that he wards spoke to Scott, and that Scott told him he not undertake the case, unless Bogliolo- would give bis note. .Bogliolo also sent Lisicier to see Scott at Ste. Genevieve, and the witness states that he did see Scott, and Scott told him he would not undertake the case unless Bogliolo gave him his note for two hundred dollars, with security. This witness further states, that in a days he returned to New Madrid, and then informed Mi. Bogliolo whát Mr. Scott had said, and that Bogliolo said lie would write to Scott upon the subject. The person who could, after reading this letter in which the mission of Lisicier is spoken of in so particular a manner,.entertain a doubt whether it was intended for Scott or another person, must be very hard to be convinced indeed. To this testimony, it may be added, too, that the letter was written by Evans, an attorney of Bogliolo, in the same cause. In the reasons assigned for a new trial, why did he not state that he was surprised, and that he could prove by Evans that the letter was addressed to another person?

The answer is obvious. I can hardly suppose that the counsel thought the letter in the state in which .it was submitted, was inadmissible evidence. But when it was admitted to the jury, they might still, if they had not been satisfied, have refused to allow it any credit. I, myself, should have given as much credit to it after hearing the other evidence, as if it had been directed to John Scott in the most legible manner.

But it is contended that the damages were excessive. People, under no infirmity of mind, must be allowed to make their own bargains. But had there been no letter given in evidence to prove the agreement to pay the two hundred dollars, there is little room left to doubt. When Lisicier told him what Scott had said, he said he would write to him on the subject, and expressed no dissatisfac-tion at the amount of the price demanded by Scott for services. This objection is reserved till the services performed — services, too, which could not have performed without his knowledge and consent; for, we learn from the evidence, that there were several chan-venue- my opinion, the evidence was all-suffi’cient to justify the finding of the jury, and the damages were not, as it seems to me, at all unreasonable,

The judgment of the circuit court ought then, in my opinion, to be affirmed, and the other judges concurring, it is affirmed.