Morehead's Trustee v. Anderson

100 S.W. 340, 125 Ky. 77, 1907 Ky. LEXIS 263

• Court: Court of Appeals of Kentucky
• Decided: March 13, 1907
• Status: Published

Opinion

Opinion of the Court by

John D. Carroll, Commissioner

Affirming.

The appellee, who is an attorney at law at Owensboro, instituted this action against the Central Trust Company of Owensboro, Ky., trustee for C. J. More-head, etc., to recover $5,202.48 alleged to be due by it for legal services rendered at its request. Upon a trial before a jury a verdict was returned for $3,202.48. From the judgment on this verdict, this appeal is prosecuted.

The facts exhibited by the record are substantially as follows: In 1903 C. J. Morehead died the owner of a large body of coal land situated in Muhlenburg county, Ky., containing approximately 4,000 acres and composed, of 59 different tracts, varying in size from 4 to 200 acres. The will appointed the Central Trust Company of Owensboro trustee, and authorized it to sell and convey these lands. Pursuant to the authority given it, appellant sometime prior to July 3, 1905, sold the property and agreed to furnish the purchaser abstracts of title thereto. Appellee was employed to make the abstracts and to cure any defects that might be found in the titles. In the performance of this service, it became necessary for him to make 35 separate abstracts, and appellee was engaged in the labor incident thereto practically all of the time between July 9, 1905, and the 4th of December, 1905. Shortly after the abstracts were completed the lands were sold to the Brown-Lam Coal Company for $189,927; the title as perfected by appellee being accepted by the purchaser. The parties made no agreement as to the fee that appellee should charge or receive for his services. Appellee testifies that; when the employment was entered into, the manager of the trust company asked him what the charge would be for making the abstracts, and he replied that he did not know how much it would be, that he could not in advance make any estimate of it, but that his charge would be reasonable, and when the work was completed he would present his bill for the same. Mr. Reno, the manager of the trust company, said in substance that neither he nor the appellee knew how much the work would be .worth, but they both agreed that, each, would treat the other fairly about the compensation. He also testified that he informed appellee that two other gentlemen had been at work on the abstracts, but he did not know definitely what progress they had made. Appellee’s actual expenses, whilst engaged in making -the abstract was $202.48, and he first presented a bill for $3,202.48. The trust company declining to pay this sum, he withdrew his-account, and instituted this action for $5,202.48. Ap1pellant in its answer averred that a reasonable compensation for the services rendered by appellee would be $500. During the trial both parties introduced a number of lawyers who testified as expert witnesses. They fixed the fee to which appellee was entitled at various sum, ranging from $500 to $5,000.

Appellant asks a reversal for the following- assigned errors committed by the trial court to its prejudice: First, in failing to require appellee to file a bill of particulars specifying each particular service rendered and the charge therefor; second, in striking from the answer so much thereof as relied upon- the fact that appellee’s charges would be the same as be had made for other similar services; third, in permitting appellee to prove the value of the land for which the abstracts of title were made; fourth, in submitting to witnesses introduced to prove the value of appellee’s services an erroneous hypothetical question; and, fifth, in misinstructing the jury.

Appellee filed with his petition an account showing in exact detail how and when and for what purpose the expense of $202.48 was incurred, and a general charge of $5,000 for services in preparing abstracts of title and perfecting the title to 3,800 acres of land known as the “Morehead coal property,” in Muhlenburg county, and advising and consulting with reference thereto'. This statement, or bill of particulars, in connection with the averments of the petition, furnished appellant with full and accurate information of the claim, asserted against it. It was not necessary that appellee should file an itemized account specifying the service rendered in making each abstract, or the time expended thereon. He was employed to examine the titles to the entire body of land, and the account filed covered the employment and embraced the whole claim asserted. If a lawyer is employed to' defend a man for murder, or to bring a suit upon a contract, or to render any other legal service, he will not be required to divide into separate items each particular service rendered, but may, in the absence of any agreement to the contrary, present a general bill covering the service he rendered under the employment When this is done, and the reasonableness of the fee is called into question, or the value or quantity of the service is denied, these matters can be fully investigated during the examination of the witnesses. Of course, if a contract of employment obliges the attorney to make a detailed and separate charge for each item of service rendered, then he should in an action against his client to recover the fee file a bill of particulars, setting out fully and in detail the services charged for. But, where the employment is general to do specific work, or attend to a particular ease or matter of business, the account need not be any broader or fuller than the contract. Therefore the court properly overruled appellee’s motion to make the bill of particulars more specific.

Nor was the ruling of the court in striking from appellant’s answer the averments concerning the fees that appellee had charged for services in abstracting other titles for it prejudicial error; it being conceded by both parties that there was no agreement as to the fee, except that it should be reasonable. The only question to be disposed of by the court and jury was whether or not the fee charged by appellee was reasonable, and a direct issue was made upon this point. What appellee charged on other occasions for similar work done for appellant was purely evidential, and not proper to be set up in a pleading.

It is earnestly insisted that the court erred in permitting evidence of the value of the land or the price at which it was sold to the Brown-Lami Company io go to the jury. If this evidence was incompetent, it was clearly prejudicial, as the large amount of money received for the land would naturally have weight with the jury in determining what would0be a reasonable charge for making the abstract of title. It is further said that there was no evidence that this land was sold for $189,000. In reference to the last suggestion, Col. Bullitt, who represented as an attorney the Brown-Lam Company, testified that he understood that the purchase price to be paid by the company was $189,000; a portion of this amount being payable to one of appellant’s directors. This statement of Col. Bullitt, while not as direct or positive as it might have been, was, in view of his relation to the transaction, admissible as evidence. The weight to be attached to it was for the jury to determine. It. may be said that the record discloses that this was the sum paid by the Brown-Lam Company for the land, but it is not important, so far as the competency of the evidence being considered is concerned, whether all of the purchase money was paid directly to the trust company or not. The purchase was made on the faith of the abstracts and certificates of title made by appellee under his employment with appellant, and the price received for the land was properly considered as a circumstance showing what would be a reasonable fee for the service rendered. In estimating the amount of compensation to which an attorney is fairly entitled, in the absence of an express contract, and when the understanding is that his charge is to be reasonable, it is competent to consider the amount and character of the service rendered, the labor, time, and trouble involved, the nature and importance of the litigation or business in which the services were rendered, the amount of money or the value of the property affected by the controversy or involved in the employment, the skill and experience called for. in the performance of the services, and the professional character and standing of the attorney. Am. & Eng. Ency. of Law, volume 3, p. 420; Louisville Gas Co. v. Hargiss, 33 S. W. 946, 17 Ky. Law Rep. 1190; Downing v. Major, 2 Dana (Ky.) 228. And in the trial of this case the court properly admitted evidence touching these several points.

It is also urged that the opinion evidence offered in behalf of appellee to establish what would be a reasonable charge for the services rendered was incompetent, and the hypothetical question submitted misleading. The question submitted to the lawyers who testified as expert witnesses embraced substantially the fact that we have held competent in determining the value of professional services, and that may properly be considered by the court or jury in estimating the reasonableness of the charge. This hypothetical question was based on the evidence of appellee detailing the services rendered, the time he was engaged, the character and value of the property 'involved, the responsibility incurred by the engagement, and embraced every fact connected directly with the services rendered, and was submitted to lawyers who were qualified by experience and knowledge of the law to testify as to the value of such service. This evidence was admissible to aid the jury in arriving at a just conclusion as to what would be a reasonable fee for the services performed. What is a fair and reasonable compensation for professional services is largely a matter of expert knowledge, and no persons aré so well qualified to express an opinion concerning the value of such services as are regular practitioners, whose knowledge of the subject, being investigated in connection with their learning and experience, enables them to express an intelligent opinion. It is. true that this evidence is not conclusive on the jury, and they are not bound to return a verdict for the sum fixed by expert witnesses as a reasonable charge, but may weigh and consider this evidence in connection with other in reaching a conclusion, and have also the right to draw on their own experience and knowledge of the subject gathered from general information, common knowledge, and other sources. Louisville, New Albany & Chicago R. Co. v. Wallace, 136 Ill. 87, 26 N. E. 493, 11 L. R. A. 787; Stanton v. Embrey, 93 U. S. 548, 23 L. Ed. 983; Head v. Hargrove, 105 U. S. 45, 26 L. Ed. 1028. The court properly refused to instruct the jury at the instance of appellant that, in arriving at the value of the plaintiff’s services, they were not confined to the evidence, but might rely upon their own judgment as to the value of the services, as this would be in effect discrediting the expert and opinion testimony offered, and suggest to the jury that they might properly disregard it, when- it was their duty to consider it in connection with the other evidence offered, and give to it such weight as in their judgment it was entitled. The court instructed the jury that they should find for appellee the sum of $202.48, the amount of the expense account sued for. This instruction is complained of as being a peremptory instruction to the jury to find for appellee the sum. It is true that this charge was denied in the answer, but its correctness and the fact that it was to be paid by appellant was admitted in the testimony. Therefore the substantial rights of appellant were not prejudiced by the instruction directing the jury to find for appellee this sum.

Upon the question of general fee, the court instructed the jury that they should take into consideration all of the evidence heard by them, and find for tire plaintiff such a sum as would reasonably compensate him for the services performed, not exceeding in all the amount claimed in the petition. This instruction submitted fairly to the jury the real, and we might add, only, issue in the case, which was: What would be a reasonable fee for the services rendered?

In addition to this, the court instructed the jury that,, when appellee entered into the contract, he undertook by implication of law to exercise reasonable care and skill in the performance of his undertaking, and that, if he certified that there was a good record title to the land involved, then he became liable to his client for any loss occurring to it by reason of negligence on his part in making the abstracts or failure to exercise reasonable care and skill in the performance of the service, and that they might consider this liability in estimating the value of the services rendered. An attorney who engaged to render professional services is liable for any loss or damage his client may sustain as the result of the attorney’s neglect or want of reasonable care or knowledge of the law. And, in abstracting and certifying to the sufficiency of the title investigated by him, appellee assumed the responsibility for any loss occurring by reason of his ignorance of the law relating to titles or his failure to exercise reasonable care and skill in the performance of the service for which he was engaged. Humbolt v. Ducker, 111 Ky. 759, 23 Ky. Law Rep. 1073, 64 S. W. 671; National Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621. This element of responsibility tbe jury had a right to be informed of and to consider in making np their verdict. In the absence of an instruction directing their attention to it, this important fact probably would not have been taken into consideration by them.

The action of the court in refusing to permit the deposition of Lindsey to be read was not prejudicial. His deposition taken on behalf of appellee, but not read by himi, contained no evidence that could have been beneficial to appellant. Nor do we feel disposed to hold that the court erred in permitting appellee to read the deposition. It is well settled that one party to a litigation may read in his behalf a deposition taken by the adverse party who declines to introduce it. But here appellant did not offer to' read the deposition of Lindsey except in rebuttal, and after it had completed its evidence in chief; and the court did not abuse, its discretion in refusing to permit this to be done.

Numerous minor errors alleged to have been committed by the trial court are pointed out by counsel for appellant, but we do not deem it necessary to further extend this opinion in discussing them, as the principal questions relied on for reversal have been considered. It is a rare jury trial, indeed, when some error is not committed by the trial court, but it is not every error that will authorize a reversal of a judgment. Meaning and effect must be given to section 756 of the Civil Code, providing that: “Nor shall a judgment be reversed or modified except for an error to the prejudice of the substantial rights of the party complaining thereof. ’ ’ And we do not find in this record any errors prejudicial to the substantial rights of appellant. The case of both parties was fully and fairly presented to the jury. They were properly instructed, and returned a verdict fixing what in their judgment under the law and evidence was a reasonable compensation for the services rendered by appellee'. The sum allowed is not too large, considering the character of the service rendered, the responsibility assumed, the time lost in its performance, and the value of the property involved. That appellee was particularly well qualified to perform the service is not denied, and the fact that his services were engaged in a transaction involving so large an amount of money, where the success or failure of the sale depended in a great measure upon his knowledge and skill' and professional standing, is well attested to by the fact of his employment.

Perceiving no error in the judgment, it is affirmed.