Richmond Guano Co. v. Bennett

87 S.E. 102, 170 N.C. 343, 1915 N.C. LEXIS 400

• Court: Supreme Court of North Carolina
• Decided: December 8, 1915
• Status: Published

Opinions

CLARK, C. J., dissenting. Civil action. The action was to recover the sum of $350, which plaintiff alleged that defendant had wrongfully retained as commissions and attorney's fees on a collection of $2,990.28, paid into office on a judgment in plaintiff's favor against John and D. M. Morrison.

Defendant contended that said amount was a legitimate charge for services as attorney and that nothing was due plaintiff.

On issue submitted, the jury rendered the following verdict:

"What amount, if any, is defendant, John T. Bennett, entitled to retain out of the money collected on plaintiff's judgment against John and D. M. Morrison? Answer: $300."

On the issue, the judge, among other things, charged the jury as follows: "The present question of fact for you to pass upon is as to the amount. Where services are rendered by one person which are valuable and which are accepted by another person, it implies a contract to pay what the services are reasonably worth, and so, in this case, the defendant's right to retain money out of the amount collected is based upon an implied contract upon the part of the Richmond Guano Company, a contract implied by law to allow him to retain what his services were reasonably worth; this is the question for you to pass upon from the evidence"; and this constitutes plaintiff's fifth exception.

"You will consider all the evidence in the case; you will give Bennett the amount contended for by Bennett, or you will say from the evidence what the services are reasonably worth"; and this constitutes plaintiff's sixth exception.

Plaintiff, having duly excepted, assigns these portions of the charge for error. After stating the case: There were facts in evidence tending to show that plaintiff held a note for $2,895.60, drawing interest from 10 December, 1912, against John and D. M. Morrison, the collection of which seemed to be in some doubt, and the holders having consulted defendant, a practicing attorney of the Richmond County bar, as to the course to be pursued, it was determined to reduce the claim to judgment, defendant agreeing to do this for $100, and a deposit with the clerk of the court of $10, to cover cost of summons, etc. The $10 and note were forwarded.

Defendant obtained the judgment and had a transcript docketed in the adjoining county of Scotland and, in a letter to plaintiffs, of 12 April, 1913, among other things, said that he had obtained the judgment and "that, in order to take every precaution, I am having a transcript docketed in Scotland County, where they own some land. I don't (345) think this is absolutely necessary, but I don't care to take any risk on an amount as large as this. I will be glad to have your check for $100, etc., as I need that amount, etc." There were other letters between the parties relevant to the issue. Thus, on 6 June, defendant wrote saying, among other things: "I am informed that they (the judgment defendants) are negotiating the sale of some property at a handsome figure, so I take it they will have to lift the judgment before the sale goes through. I had not overlooked the matter and will be on the job until you realize the amount of your claim." The $100 was sent and receipt acknowledged, and later, 4 July, 1913, the judgment debtors, having made an advantageous sale of a body of land owned by them in Scotland County, it became necessary to discharge the lien created by plaintiff's judgment docketed in the county, and same, to the amount of $2,990.28, was paid on the judgment into the office in Richmond County, and when defendant, having receipted for same, forwarded to plaintiff the amount, less fees of $450 retained for further services, plaintiff returned check, claiming that the $100 already paid covered the attorney's charges, and the sum less the fees, the subject-matter of the litigation, seems to have been again paid over, leaving the question as to this charge to be determined by suit. Defendant, in the course of his evidence, among other things, testified:

"After writing the letter of 12 April (in which plaintiff was notified that judgment had been obtained) the only service that I rendered was having the judgment docketed, that is, a transcript of the judgment sent to Scotland County," and later: "The only service rendered by me, in addition to obtaining the judgment, was to have a transcript sent to Scotland County, and receipting for and forwarding the money, and for this I charged $350, etc."

In Winkler v. Killian, 141 N.C. at page 578, in reference to the promise to pay usually implied by the law in case of services rendered, the Court said: "It is ordinarily true that where services are rendered by one person for another, which are knowingly and voluntarily accepted, without more, the law presumes that such services are given and received in expectation of being paid for, and will imply a promise to pay what they are reasonably worth. This is a rebuttable presumption, for there is no reason why a man cannot give another a day's work as well as any other gift, if the work is done and accepted without expectation of pay."

Speaking to the same subject in Prince v. McRae, 84 N.C. 675, ChiefJustice Smith, delivering the opinion, said: "Whether plaintiff's services shall be deemed a gratuity or constitute a claim for compensation must be determined by the common understanding of both parties. If they were intended to be and accepted as a gift or act of (346) benevolence they cannot at the election of plaintiff create a legal obligation to pay, etc." And, in that case, the question was left to the jury to determine.

Applying the principle approved in these and other decisions of like kind, we are of opinion, that, on the facts presented in the record, there was error in the ruling of his Honor that the only question for the jury to determine was the reasonable value of the services rendered, and that the issue as to defendant's liability also must be referred to the jury on the question whether any services, after procuring the judgment, were rendered and received in expectation of being paid for, or were they rendered with the intent and understanding of both parties that no further charge should be made in addition to the $100 already received.

And, if this is decided for defendant, then the question of amount shall be also determined by the jury on the basis of what such additional services were reasonably worth.

There must be a new trial of the issue, and this will be certified, etc.

New trial.