Jones v. Fitzpatrick

24 S.E. 1030, 47 S.C. 40, 1896 S.C. LEXIS 95

• Court: Supreme Court of South Carolina
• Decided: July 10, 1896
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The facts out of which this controversy arose, so far as they are undisputed, may be stated as follows: The defendant, having funds of his ward to invest, employed Mr. Jones, one of the plaintiffs, as his legal adviser in making such investments, the understanding being that the expense of investigating the titles of property offered as security, and preparing the necessary papers, should be borne by the borrower of the money. In pursuance of this arrangement, a loan of the sum of $2,000 was effected, some time in the summer of 1887, to one Massey, out of the funds of defendant’s ward, which was secured by a mortgage of real estate, drawn and executed in the office of Mr. Jones — the other plaintiff, Mr. Williams, not then being a partner of Mr. Jones, but acting as a clerk in his office. Soon afterwards, however, a partnership in the practice of law was formed between the plaintiffs, which contined until the 1st of January, 1895. After the lapse of about five years from the making of said loan, the money not being paid, the defendant placed the mortgage in the hands of Jones & Williams, with instructions to foreclose the same. In accordance with these instructions, the plaintiffs, as attorneys at law, some time in the year 1892, commenced an action against Massey for foreclosure of the mortgage, to which Massey appeared and made defenses, which, however, were not sustained, and judgment of foreclosure was rendered, under which the mortgaged premises were sold, yielding a sum of about $3,100, which being insufficient for the payment of the mortgage debt and costs, judgment was entered for the deficiency. Some time in the year 1893, the plaintiff, Jones, called upon the defendant for a settlement of the fee of Jones & Williams in the action for the foreclosure of the Massey mortgage. The defendant denying that he owed the plaintiff any fee, and refusing to pay the same, this action was commenced on the 15th of November, 1893, to recover the sum of $150, plaintiffs alleging that their professional services were reasonably worth that sum of money. The defendant, in his answer, set up two defenses: First. A denial that he. owed the plaintiffs anything at all, together with a denial that the professional services alleged to have been rendered him by the plaintiffs were reasonably worth the sum claimed. Second. That by express agreement between the plaintiff, Jones, and the defendant, made at the time (1887) when said Jones was first employed as his legal adviser, it was understood that, in case it became necessary to foreclose any mortgage, no charge, beyond the tax costs, was to be made for foreclosing the mortgage, and that the tax costs in the action for the foreclosure of the Massey mortgage had been paid to, and received by, the plaintiffs. The defendant testified distinctly that there was such an agreement as that set up' in his answer, and the plaintiff, Jones,’ testified positively that there was no such agreement, while the plaintiff, Williams, testified that he knew nothing of any such alleged agreement, and never heard of it until a short time before the commencement of this action. So that the controlling issues in the case were, firsts whether anything was due to the plaintiffs for their professional services in the action for the foreclosure of the Massey mortgage; and, second, if so, what was the value of such services; for it is not claimed by the plaintiffs that there was any special contract fixing the amount to be allowed them as compensation for their services, and their claim rests alone upon a quantum meruit.

Upon the close of the testimony the case was submitted to the jury, under the charge of his Honor, Judge Benet, which is set out in the “Case,” and which should be incorporated in the report of this case, and a verdict was rendered in favor of the plaintiffs for the sum of $25. Thereupon the plaintiffs moved for a new trial on the minutes of the Court, basing their motion on the following grounds: 1st. “Because the verdict was against the preponderance of the evidence. 2d. Because the verdict was contrary to the charge. 3d. Because it is alleged that two jurors in the cause were related to the defendant’s ward.” This motion was refused, for the reasons set forth in the remarks of the Circuit Judge found in the “Case,” which should likewise be incorporated in the report of this case; and judgment having been entered upon the verdict, plaintiffs appeal upon the several grounds set out in the record, which should also be incorporated in the report of the case.

1 Inasmuch as the jury were explicitly instructed that unless the defendant had, by the preponderance of the evidence, established the agreement set up in the answer, they must find a verdict for the plaintiffs, as it was not denied that they had rendered the services upon which their claim was based; and inasmuch as the jury did find a verdict in favor of the plaintiffs, we are bound to assume that the jury concluded that no such agreement as that set up by defendant had been established. This being so, we cannot see the pertinency of the questions sought to be raised by the first four grounds of appeal; for even assuming that there was error in any of the points there suggested (which, however, we are not to be regarded as holding), we cannot perceive how such errors, if any there be, could prejudice the interests of the plaintiffs. If the jury concluded, as their verdict manifestly shows, that there was no such agreement as that relied on by defendant had been established, the plaintiffs, certainly, have no right to complain of anything said to the jury as to such alleged agreement. The question whether there was such an agreement was a pure question of fact, which we have neither the power nor the disposition to consider. But it may not be amiss for us to say, that we can very readily see how the apparent conflict between the witnesses may be reconciled without the slightest imputation upon any one. There is no doubt of the fact, that the original understanding between Mr. Jones and Mr. Fitzpatrick was, that the former should make no charges against the letter for his professional services, in investigating the titles to property offered as security, drawing the papers necessary, and such legal advice as might be incident thereto, and that he would look to the borrower for his compensation for stick services; and. it is easy to understand how Mr. Fitzpatrick, after a lapse of five years, might honestly suppose that such understanding extended to • any professional services which Mr. Jones might, thereafter, be called upon to render, in enforcing the payment of a mortgage debt.

23 Exceptions five to eleven, both inclusive, all relate to the second general question, with respect to the value of the services upon which the plaintiffs base their claim. In the absence of any special contract fixing the value of the services, the plaihtiffs, as in other like cases, have been compelled to resort to the opinions of witnesses as to the value of the services rendered. But it will be observed that such testimony is not the statement of any facts, but simply the expression of opinions, to aid the jury in forming their own opinion as to the value of the services; which, after all, is the final test of such value. It is the duty of the jury, after hearing all the testimony, to form their own conclusion as to the value of the services sued for; and, as the Circuit Judge significantly points out, the jury had before them not merely the opinions of the expert witnesses, but also the nature and amount of the services charged for, and from all these circumstances they have reached the conclusion expressed by their verdict. Now, while the Circuit Judge had the power to set aside this verdict, as he plainly recognized that he had, and while he, doubtless, would have reached a different conclusion as to the value of the services from that reached by the jury, if the question had been originally submitted to him, yet he certainly was not bound to set aside the verdict for any such reason, and there was, clearly, no error of law on his part in refusing to do so; and that is the only question which we are called upon to decide. In both of the cases of The State v. David., 14 S. C., 428, and Wood v. Railway Co., 19 S. C., 579, the Circuit Judge underrated his power to set aside a verdict in such cases as were there presented, which was held to be a clear error of law. But where, as in the case of Steele v. Railroad Co., 11 S. C., 589, the Circuit Judge refused a motion for a new trial, based upon the ground that the verdict was contrary to the preponderance of the evidence, and because the damages were excessive, this Court held that it had no power to interfere. See, also, State v. Cardoza, 11 S. C., at page 222, which has since been repeatedly recognized. The rule is undoubtedly well settled, that a motion for a new trial upon the ground that the verdict is against the preponderance of the evidence, is addressed largely to the discretion of the Circuit Judge; and where he refused to substitute his own view of the evidence for that taken by the jury, he commits no error of law, and hence this Court has no jurisdiction to reverse his action.

4 The tenth and eleventh grounds of appeal, however, impute to the Circuit Judge distinct errors of law — tenth, in holding “that the jury were the supreme judges of the value of the services of the plaintiffs.” Inasmuch as the question as to what was the value of the services of the plaintiffs was a pure question of fact, of which the jury were the exclusive judges, it is difficult to perceive any foundation for the error here imputed.

5 Eleventh, in holding “that the jury had the right to disregard the testimony of experts as to the value of plaintiffs’ services, and had the right to consider the value of the services according to their own estimate thereof.” That there was no error in this, is conclusively shown by a case cited by respondent’s counsel, Head v. Hargrave, 105 U. S., 45, where it was held: “In an action for legal services, the opinions of attorneys as to their value are not to preclude the jury from exercising their own knowledge and ideas on the subject. It is their province to weigh the opinions by reference to the nature of the services rendered, the time occupied in their performance, and other attending circumstances, and by applying to them their own experience and knowledge of the character of such services. The judgment of a witness is not, as a matter of law, to be accepted by the jury in place of their own.” In that case the following request to charge was said by the Court to correctly present the law of the case: “Determining the value of the plaintiff’s services, the jury are not bound by the testimony of the expert witnesses; that testimony may be considered by the jury; but if in their judgment the value fixed by those witnesses is not reasonable, they may disregard it, and find the amount.which, in their judgment, would be reasonable.” Mr. Justice Field, in delivering the opinion of the Court, takes care to draw the distinction between a jury acting upon material facts, material to the issue in the case, resting in their own private knowledge, and applying their own knowledge as a test of the value of opinions given by expert witnesses. See, also, 7 Am. & Eng. Ency. of Law, 516, and the cases there cited. As to the ground taken for new trial, that the verdict was contrary to the charge of the Circuit Judge, we do not think it is well founded. The case turned mainly upon questions of fact; and as to such matters the Circuit Judge did not undertake, and could not have undertaken, to give the jury any instructions, but very properly left such questions entirely to the jury. So, too, we see no ground whatever for the complaint that the Circuit Judge violated the provisions of the Constitution in charging upon the facts; and in this respect the charge as set out in the “Case” furnishes its own vindication.

6 It only remains to consider the point raised by the twelfth ground of appeal. It would be sufficient to say that the ruling of the Circuit Judge as to this point is incorrectly represented (no doubt unintentionally) in this ground. The Circuit Judge did not hold that it was too late to consider the qtiestion on a motion for a new trial; but what he did say, after stating that the jurors might and should have been asked whether they were related to any of the parties interested, before the jury was organized for trial of the case, was, that it was then too late to put that qicestion, as it manifestly was. But even if he had made the ruling imputed to him, the cases of Pearson v. Wightman, 1 M. Con. Rep., 336; Josey v. Rail Road Co., 12 Rich., 134, and Todd v. Gray, 16 S. C., 635, are quite sufficient to sustain such a ruling; especially where it was not made to appear that the objection to the juror was not known to the party in time to interpose it at the proper time. Indeed, the remarks made by the Circuit Judge in refusing the motion for a new trial on this ground, seems to us amply sufficient to vindicate the correctness of his ruling. See Bridger v. R. R. Co., 27 S. C., 456. The statement made by counsel for appellants in his argument here, that “no affidavits were submitted and no proof offered as to this relationship, because the Judge distinctly announced that he could not take notice of “this matter then, that it was too late,” cannot avail the appellants, because the Circuit Judge did not and could not have made any such announcement until the motion was submitted; and it was incumbent upon appellants to base their motion upon affidavits to sustain the facts upon which they rested their claim to -the motion, which should have been served before the motion was submitted. It seems to us clear, therefore, that the twelfth ground of appeal cannot, in any view of the matter, be sustained.

7 Having reached the conclusion that the judgment appealed from must be affirmed, it becomes unnecessary to consider the grounds upon which respondent has given notice that he will seek to sustain the judgment; though we are not to be considered as recogmzing the rights of respondent to sustain a judgment based upon the verdict of the jury upon any grounds not submitted to the jury. See Bonham v. Bishop, 23 S. C., 96.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed. ¹