Turner v. Myers

23 Iowa 391

• Court: Supreme Court of Iowa
• Decided: December 13, 1867
• Status: Published

Opinion

Wright, J.

Attorney: “?ainCT0OT recogmtion. The only testimony in the case is that of the plaintiff. Giving to the findings of the court below every presumption to which, upon well settled rules, it is entitled, we are to detei-m:[ne ¶-hetRex' it was warranted by the testimony. In other words, is the verdict, for the findings of the court are to be treated as such, so far and clearly against the weight of testimony as to justify our interference ?

That the son was liable for these sex-vices, there is no question. He was the px-incipal, and expx-essly retained plaintiff to prosecute and defend the suits for the services in which, plaintiff charges. And when it appears that the attorney commenced a suit in the name of the principal and surety, at the request of the principal, without at any time seeing the surety, without being requested by such surety to pex-form any services for her, will the single fact that she knew of the px-oceedings, make hex-liable for his services ? It seems to us not, and that this judgment must be reversed.

In the first place, it was the duty of the son to prosecute and defend these actions at his own cost axxd expense. He was the principal, and fii-st liable to pay. He was the party primarily to be benefited. There is no pretense that he was acting as the agent of the mother, that he was under age, nor that she signed any papers in the case, other than the replevin bond. Then, without any request from the surety, these services were rendered at the instance of the principal, which may be incidentally valuable to her; and though she might know of the proceedings, we do not think, upon any rule, it could be held that she was impliedly liable to pay for the same. The express contract with the son, and his primary liability, in the absence of other proof than is found in this record, would seem to justify the conclusion that the son and not the mother was the one to whom the plaintiff was to look for his pay. And here, be it remembered, that while plaintiffs in the injunction suit appealed to the Supreme Court, it is not claimed that plaintiff herein, rendered any service on such appeal.

It was plaintiff’s duty to prove his retainer by the person sought to be charged. This he might do by showing that the defendant called upon him in regard to the business; that she executed his directions in connection therewith; that she was present at the trial while he was managing it in her behalf, or that she spoke of or recognized him in some manner as her attorney. 2 Greenl. Ev. § 139. It may be difficult, in most eases, to prove the original employment, yet some recognition of the attorney during the progress of the suit may certainly be shown, and, without some such proof, it would be unjust and a dangerous precedent to make a party liable. Hotchkiss v. Le Roy, 9 Johns. 142; see also Hopkins v. Mallard, 1 G. Greene, 117; McCulloch v. Robinson, 2 Ind. 630.

Reversed.