Fairchild v. Michigan Central Railroad

Appellate Court of Illinois

Fairchild v. Michigan Central Railroad

8 Ill. App. 591, 1881 Ill. App. LEXIS 64

DecidedJune 14, 1881

StatusPublished

This text of 8 Ill. App. 591 (Fairchild v. Michigan Central Railroad) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fairchild v. Michigan Central Railroad, 8 Ill. App. 591, 1881 Ill. App. LEXIS 64 (Ill. Ct. App. 1881).

Pincite

Opinion

Bailey, J.

If the evidence establishes a valid contract between the parties fixing the amount of the plaintiff’s compensation for taking the deposition in question, such contract must govern, and proof of value, other than that so fixed, cannot be considered. The plaintiff testifies that while the deposition was still in his hands and under his control, there was an agreement between him and the defendant’s attorney, fixing the amount to be paid him at $50. This testimonyis not contradicted; but it is urged that the attorney, in making such agreement, transcended the limits of his authority and did not bind his client. That he was the attorney for the defendant in the suit in which the deposition was taken is proved, and is not disputed; and it will be presumed that he was vested with the authority ordinarily appertaining to that relation. He was clearly authorized to take all such steps as were necessary to a proper defense of the suit; among which may fairly be included the suing out of a commission to take the deposition of a non-resident witness, as well as procuring the services of a suitable person to execute such commission. This seems to be conceded, as the defendant does not contest the propriety of its attorney’s acts in suing out the commission, or in employing the plaintiff to take the deposition.

We know of no statute limiting or regulating the fees of commissioners employed here to take depositions in suits pending in other States, and in the absence of such statutory regulation, we see no reason why an authority to engage the services of a commissioner, does not carry with it, an as an incident, power to stipulate with him as to the amount of his compensation. In this case, the evidence that such stipulation was made being undisputed, the plaintiff is entitled to recover the full amount of the price agreed upon, and the verdict of the jury in failing to award that sum is contrary to the evidence, and should have been set aside.

But even if it should be conceded that the agreement in question is invalid, the judgment must still be held to be erroneous. In the absence of a special agreement, the plaintiff would be entitled to recover such sum as his services were reasonably worth. His own evidence is that they were reasonably worth $50. The only evidence in conflict with this is that of the two stenographers who testified for the defendant; and they do not attempt to give an opinion as to the value of the plaintiff’s services, but state what their own charges would have been for doing the same work. What they would have charged furnishes no criterion for determining the reasonable value of the plaintiff’s services, and is wholly immaterial. It was error, therefore, to admit their testimony on that subject against the plaintiff’s objection.

One of these witnesses it is true, testifies that the price he would have charged was the usue.1 price among 'stenographers. Even if this is to be regarded as equivalent to a statement that the sum mentioned would have been the reasonable value of a stenographer’s services for doing the work, we do not think such evidence sufficient to overcome the plaintiff’s testimony as to the reasonable value of the services performed by him. The defendant did not see fit to employ a stenographer to take the deposition, but a lawyer of many years experience in the practice of his profession, and whose acquaintance in legal proceedings and with the forms prescribed by law for taking, certifying and returning depositions, may have rendered him much better qualified for the performance of the required service than a mere short-hand writer. The defendant having availed itself of the plaintiff’s professional knowledge and experience, cannot be permitted to measure his compensation by .such sum as would have secured the services of a commissioner possessing none of these peculiar qualifications. In this view it is clear that the preponderance of the evidence as to the reasonable value of the plaintiff’s services is with the plaintiff.

For the reasons above stated the judgment must be reversed, and the cause remanded.

Judgment reversed.

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Bailey, J.

If the evidence establishes a valid contract between the parties fixing the amount of the plaintiff’s compensation for taking the deposition in question, such contract must govern, and proof of value, other than that so fixed, cannot be considered. The plaintiff testifies that while the deposition was still in his hands and under his control, there was an agreement between him and the defendant’s attorney, fixing the amount to be paid him at $50. This testimonyis not contradicted; but it is urged that the attorney, in making such agreement, transcended the limits of his authority and did not bind his client. That he was the attorney for the defendant in the suit in which the deposition was taken is proved, and is not disputed; and it will be presumed that he was vested with the authority ordinarily appertaining to that relation. He was clearly authorized to take all such steps as were necessary to a proper defense of the suit; among which may fairly be included the suing out of a commission to take the deposition of a non-resident witness, as well as procuring the services of a suitable person to execute such commission. This seems to be conceded, as the defendant does not contest the propriety of its attorney’s acts in suing out the commission, or in employing the plaintiff to take the deposition.

We know of no statute limiting or regulating the fees of commissioners employed here to take depositions in suits pending in other States, and in the absence of such statutory regulation, we see no reason why an authority to engage the services of a commissioner, does not carry with it, an as an incident, power to stipulate with him as to the amount of his compensation. In this case, the evidence that such stipulation was made being undisputed, the plaintiff is entitled to recover the full amount of the price agreed upon, and the verdict of the jury in failing to award that sum is contrary to the evidence, and should have been set aside.

But even if it should be conceded that the agreement in question is invalid, the judgment must still be held to be erroneous. In the absence of a special agreement, the plaintiff would be entitled to recover such sum as his services were reasonably worth. His own evidence is that they were reasonably worth $50. The only evidence in conflict with this is that of the two stenographers who testified for the defendant; and they do not attempt to give an opinion as to the value of the plaintiff’s services, but state what their own charges would have been for doing the same work. What they would have charged furnishes no criterion for determining the reasonable value of the plaintiff’s services, and is wholly immaterial. It was error, therefore, to admit their testimony on that subject against the plaintiff’s objection.

One of these witnesses it is true, testifies that the price he would have charged was the usue.1 price among 'stenographers. Even if this is to be regarded as equivalent to a statement that the sum mentioned would have been the reasonable value of a stenographer’s services for doing the work, we do not think such evidence sufficient to overcome the plaintiff’s testimony as to the reasonable value of the services performed by him. The defendant did not see fit to employ a stenographer to take the deposition, but a lawyer of many years experience in the practice of his profession, and whose acquaintance in legal proceedings and with the forms prescribed by law for taking, certifying and returning depositions, may have rendered him much better qualified for the performance of the required service than a mere short-hand writer. The defendant having availed itself of the plaintiff’s professional knowledge and experience, cannot be permitted to measure his compensation by .such sum as would have secured the services of a commissioner possessing none of these peculiar qualifications. In this view it is clear that the preponderance of the evidence as to the reasonable value of the plaintiff’s services is with the plaintiff.

For the reasons above stated the judgment must be reversed, and the cause remanded.

Judgment reversed.

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Bluebook (online)

8 Ill. App. 591, 1881 Ill. App. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairchild-v-michigan-central-railroad-illappct-1881.