Fraser v. Haggerty

49 N.W. 616, 86 Mich. 521, 1891 Mich. LEXIS 966

• Court: Michigan Supreme Court
• Decided: July 28, 1891
• Status: Published

Opinions

McGrath, J.

Plaintiffs, as copartners, sued defendant in asstmpsit for legal services alleged to have been performed by Mr. Gates for defendant.- The jury found for defendant, and plaintiffs appeal.

Defendant was a party to two suits' pending on the chancery side of the Wayne circuit court, in which Sylvester Larned was her solicitor of ■ record. Mr. Gates claimed that defendant came to his office, November 26, 1886, and told him that she had a suit coming on in the circuit court, in which Col. Larned was her solicitor, and that he was out of the city; that she offered him $30 to assist Col. Larned to the end of that case; that he refused, but consented to appear in Col. Larned’s absence; that he went into court on that day, and raised some objections, the argument upon which occupied most of the afternoon; that the objections were sustained, and the hearing adjourned to December 10; that Col. Larned came into court during the argument; that, on that day, defendant said that she wanted him to continue in the case; that afterwards, and on December 17, a dispute arose, she insisting that his agreement was to assist Col. Larned for $30, and he denying that agreement; that he then retired from the case, and did not appear in court !n the afternoon; that on that evening Col. Larned telephoned him, asking him to meet Larned at the courtroom the next morning; that he was there, and Col. Larned told him that defendant had authorized him (Larned) to employ plaintiffs at the rate of $15 per day, the previous services of Mr. Gates to be paid for at what they were worth; that he was consulted from time to time by her, and that she was present from time to time in court, when he was engaged at the various hearings; that he did a large amount of labor in that case, and performed other services in the other suit and in other matters under the same arrangement; that, in all, he had performed 69 days of service in one case, and that his charges in that case, according to-the agreement, amounted to $1,476.90; and that the amount of his bill in the other case was $303.60.

Col. Larned was called as a witness for plaintiffs, and testified that he was defendant's solicitor of record in both cases, and that on December 17 defendant authorized him to employ Mr. Gates, as counsel, at $15 per day for all the work which Gates had done, as well as all that he was to do. Other witnesses were called for plaintiffs as to the value of their services, and as to the presence of Mr. Gates in the cases in question, and as to defendant's presence also.

Defendant denies absolutely and unequivocally the employment of plaintiff, or that she ever authorized Col. Larned to employ him, or that she had ever consulted with Gates, or authorized him to do any work, except that, in the absence of Col. Larned from the city, she called upon Gates, and asked him to act for her in Col. Larned's absence, and agreed to pay him $30 for so doing; that this was the first time she saw Gates; that after Larned's return she noticed Gates in court, and told him that their engagement was at an end, and that if he did any further work in the ease she would not pay him for it; that she offered to pay him $30, and he declined to receive it, saying that he had done what he had out of courtesy to Col. Larned, in his absence; that afterwards she saw Gates in court, and protested to Larned about Gates’ presence, and Larned said to her that, inasmuch as she did not have to pay Gates, she ought not to object; that she had employed Col. Larned to do the work in those cases, and to do all the work in them.

The case went to the jury upon this testimony, and the jury found for defendant.

The first four assignments of error relate to the cross-examination of Mr. Larned respecting his employment by defendant; ihe execution o'f a written agreement between the witness and defendant at the time of his employment, and a second written agreement on December 17; and he was asked to identify these agreements and certain receipts and notes, which he did. It is insisted that these agreements did not bind plaintiffs. But, as bearing upon the weight and credibility to be given to the testimony of the witness, it was important to show just what the relations between the witness and defendant were, and whether or not the witness had not himself agreed to do the work in these cases. Defendant’s counsel stated that he proposed to show that the witness had by these papers agreed to conduct the cases to a ■ successful issue. The court excluded the instruments, and this is the only error which we can discover in this part of the record. It was certainly proper to show that on December 17, the very day alluded to by both Larned and Gates as that upon which Larned had been authorized to employ Gates, the former had made- an agreement with defendant such as was claimed. Especially is this true, in view of defendant’s claim that Larned had afterwards assured her that the presence of Gates was due to his employment, not hers.

The next five 'assignments of error relate to the admission of defendant's testimony as to conversations with Larned, and his agreement to try one of the cases for $50. On his cross-examination, Mr. Larned had been asked regarding these conversations, and had denied them.

Deferring again to the contract between Ool. Larned and defendant, counsel for defendant made the following statement:

“I offer this contract in evidence for the purpose of showing that in this paper Ool. Larned agreed to conduct this case to a successful issue.''

The court excluded it. Again counsel for defendant said:

“I now offer it in evidence for the purpose of contradicting the statement made by Ool. Larned.”

It was again excluded. Counsel for defendant then asked Col. Larned:

“Mr. Gates did the work in the Campbell-Strong case that you had agreed to do, and received pay for it, didn't he?”

The question was objected to, and excluded. Error is assigned upon these offers and question.

Defendant's claim was that she had employed Ool. Larnard to do all the work necessary to be done in the conduct of this litigation; that, if plaintiffs were employed by Larned, it was to do that which she had employed Larned to do, and he, not she, had agreed to pay for it. Plaintiffs in their bill of particulars included items for “ drafting lis pendens; ” drafting receipts for costs; drafting subpoenas; securing signature of judge to decrees; drafting notice of settlement of decrees; preparing bills of costs; drafting order pro confesso; copying papers; serving papers; attending court 12 times when cause was not reached; and attending taxation of costs, — aggregating $335.50. These items are within the scope of the solicitor’s duty in the conduct of a cause, and are not ordinarily classed as duties of counsel. Plaintiffs sought to show that in their employment Larned acted as agent for defendant. Under such circumstances courts will ordinarily allow to a cross-examination a wide range. The offers and question were entirely proper, and the error was in their exclusion. All these circumstances bore upon the question of the credibility of the witness.

The other assignments of error relate to the court’s instructions to- the jury. The plaintiffs tried the case upon two theories:

1. An express contract at the rate of $15 per day.

2. An implied contract, growing out of the performance .of the services by plaintiffs, the defendant’s knowledge of Gates’ presence in court, her consultations with him, and the receipt by her of the benefits of the work done.

The jury were instructed, substantially as requested by plaintiffs on both theories, except, however, that the court instructed the jury that if defendant did not employ plaintiffs, and did not authorize Col. Larned to employ them, there could be no recovery upon any implied contract, if they found that defendant told Mr. Gates that she would not pay for any services which plaintiffs might render; that, if defendant “ told Mr. Gates distinctly that she wou.ld not pay, the law would not imply from the acceptance of the services after that a promise to pay for them.” There was no error in this instruction.

It is insisted upon the argument here that defendant did not claim to have notified Mr. Gates until December 17 that she would not pay for any further services, and that at that time plaintiffs had performed services amounting to about $250.. But no testimony was offered as to the value of these particular services. Mr. Gates testified that, up to and including December 17, he worked for defendant in court and office about 12 days.

“ Twice during that time she came to our office. Once she brought in some witnesses for me to examine, and once I prepared a subpoena and 11 copies at her request. Our charges against her in .this case during this time amounted to about $250.”

No severance was made upon the trial, and no separate request submitted by plaintiffs in relation to these services. Mr. Gates testified that defendant first asked him simply to act in the absence of Mr. Larned, but denies that he agreed to do this for the sum of $30. He claims, however, that, after Mr. Larned’s return, defendant asked him to stay in the case, and assist Ool. Larned. This, however, defendant denies, and insists that the original agreement covered the services performed up to that date. Her testimony upon this point is as follows:

“I says, fMr. Gates, you were not to work in this case. I agreed to give you $30 to watch this case, in case it was left alone, as it was the first day, and, if so, have it adjourned, and notify me, that I could take care of my case.’ I says, cyou were not to work in this case.’ He said he knew that; and I says, f Ool. Larned was to try this case for $50;’ and Ool. Larned said he knew that, but he said there was going to be too much work in it, and he would not try it; and so I says to them, I says to Col. Larned, turning round, CI will give you $15 a day for three days, $45, in addition to the $50 that I agreed to give you to try this case, — $95 in all.’ And I says to Mr. Gates, ‘I was to give you $30 to watch the case. I will give you $10 a day for 3 days in addition, —$60 in all.’ And Mr. Gates says, ‘I have quit the case,’ and left the court-room.

“ My sons, John and Floyd, and Mr. Henry and myself then went to Mr. Gates’ office, and I asked Mr. Gates for the papers that Charles Larned and I had brought over there on November 26, and he handed them to me. Says I, ‘ There was another among them when he brought them here, — a mortgage.’ He took it out of his desk and handed it to me. Says I, ‘Has there been anything done on this mortgage?' He says, ‘I have not looked at it.' Says I, ‘Do 'I owe you anything on it?' He says, ‘Nothing at all.' ‘Now,' says I, ‘Mr. Gates, how am I going to pay you that $30 that I agreed to pay you for watching this casé through in case it was left alone, to have it adjourned and notify me?' Says he, ‘You don't owe me anything. What I have done so far in this case is a matter of courtesy to Col. Darned; a duty one lawyer owes to another.' And then says I, ‘You say I don't owe you anything?' Says he, ‘Yes, that is all right."'

The testimony which plaintiffs introduced regarding the value of the services related to the entire services, and no proof was offered in relation to the particular services rendered prior to December 17, except Gates' testimony that “our charges amounted to about $250.'' There was no testimony upon which the jury could have based a verdict for these particular services.

Plaintiffs relied upon the theory of an express contract covering their entire services, or an implied contract of the same extent. They made no separate claim as to services performed before December 17, and made no sufficient proof as to these specific services; nor did they ask for any instruction relative to them, although a number of requests were submitted on behalf of plaintiffs. It is true that defendant claimed that she agreed to pay $30, but this agreement plaintiffs repudiated, and defendant testified that she offered to pay that amount, but that Mr. Gates informed her that what he had done up to that time was done out of courtesy to Col. Darned, and that he had made no charge therefor.

The court’s charge followed the lines suggested by plaintiffs, and upon which their proofs were made, and is not open to the objection, made here for the first time, that the trial judge did not, of his own motion, introduce a theory supported only by defendant's testimony, which was denied by plaintiffs, which, if suggested, might have entitled them to a verdict of $30, whereas the claim was made for nearly $1,900; especially in view of the disclaimer testified to by defendant, as to the effect of which no instructions were asked. Rankin v. West, 25 Mich. 195; White v. Campbell, Id. 463, 474; Advertiser & Tribune Co. v. Detroit, 43 Id. 116.

As was said in White v. Campbell, under the circumstances of this case,—

“ Whatever might have been proper for the court below to have done on a motion for a new trial, there appears to be no ground upon which this Court, as one of review, and in the state of this record, can reverse the judgment in consequence of the want of an instruction adapted to that theory of the evidence for which plaintiff in error now contends, and in accordance with which no instruction was asked.''

Plaintiffs' counsel requested the court to instruct the jury as follows:

“6. If you believe that Mrs. Haggerty has testified falsely in any of the following material particulars:

“a — That she did not consult with Mr. Gates in a single instance during the hearing of the cases in court;

“b — As to her belief of the contents of the amended bill in the Miloch case npt being solely based upon the ground of a mistake in the discharge of the mortgage, but that it was to get Stellwagen out of the case;

“c — -As to the conversation she claims to have had, on the hearing before Judge Look, with Lamed;

“d — As to her belief that the $30 would be full compensation for Mr. Gates’ services if the case lasted 30 years; “e — As to the testimony of any other material points,— “Then you are at liberty to reject her testimony entirely.

“7. If any witness or party has willfully testified falsely on this trial as to any material fact in the case, you are at liberty to reject and disbelieve all the testimony of any such witness.”

The court upon this point instructed the jury as follows:

“I am asked to charge you, with reference to that, that if Mrs. Haggerty testified falsely in any material particular, — and there are several particulars named,— you are at liberty to reject her testimony entirely. That is so, gentlemen of the jury. If a witness has testified falsely in any particular, of course you may reject the testimony entirely. That applies not only to Mrs. Haggerty, but to any other witness that has been sworn in this case, either on the. part of the plaintiffs or on the part of the defendant; but, inasmuch as I do not care to comment upon the testimony at large, I do not think I will call your attention to the specific instances that the counsel have requested. If a witness or a party has testified falsely on this trial as to any material fact in the case, you are at liberty to reject and disbelieve all the testimony of such witness.”

The instruction given clearly and. sufficiently stated the law upon the subject.

Appellants say in their brief:

“The general application of the rule, together with the omission of the details in which it was claimed Mrs. Haggerty had falsified, entirely destroyed the force of the proposition embodied in this request. There was no pretense on either side that appellants5 witnesses had testified falsely. It was claimed that Mrs. Haggerty had, and the particulars of such perjury were defined.”

The weight of evidence is a question for the jury. It is not determined by a count of the witnesses. It is improper for the court to instruct the jury as to the weight they should give to particular testimony, or to the testimony of a particular witness, or to put a particular witness into undue prominence by charging the jury to find according to their belief in his evidence, if such charge tends to ignore other testimony. Springett v. Colerick, 67 Mich. 362; Chase v. Iron Works, 55 Id. 139. On the other hand, a trial judge has no right so to instruct the jury as manifestly to reflect upon a particular witness. Wheeler v. Wallace, 53 Mich. 355; G. R. & I. R. R. Co. v. Martin, 1 Id. 667, 672.

The correct rule of law was laid down by the court, and there was no error in the statement that it was of general application.

There is no error in the record, and the judgment must be affirmed, with costs.

Champeen, C. J., Morse and Grant, JJ., concurred with McGrath, J.