White v. Tolliver

110 Ala. 300

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

McCLELLAN, J.

There was no satisfactory proof that the letter offered in evidence by the defendant, and purporting to bear the signature of T. M. Arrington,' was signed by said Arrington. The only witness examined with reference to the matter, testified that “he had never seen Judge Arrington write his. name, and did not know that’he was acquainted with his handwriting, but. that the signature to the letter and the handwriting in the body of it, was . like other'writing he had seen, purporting to be the signature of Judge Arrington.” This was insufficient as preliminary proof 'of handwriting.— 1 Greenl. Ev., § § 676'ei seq. But the witness, who was •the defendant, further testified that he had mailed a eer-tain appearance bond to Judge T. M. Arrington, of the Oity Court of Montgomery, that he had received this letter inclosed with the same appearance bond; that the envelope inclosing the bond and letter was postmarked, “Montgomery, Ala., January 26,1891,” and was received in due course of mail. The letter itself referred to that written by defendant to Judge Arrington inclosing the bond, and gave reasons why the writer would not approve said bond. On these facts, we think the letter should have been admitted in evidence without proof of the handwriting of T. M. Arrington.—1 Greenl. Ev., § 573a, citing Ovenston v. Wilson, 2 Car. & Kir. 1; Ib., § 577, n. 2, citing Kinney v. Flynn, 2 R. I.319; McKonkey v. Gaylord, 1 Jones, Law, (N. C.) 94.

This letter bore upon contested issues of fact in tho case, and tended in some degree to support the defendant’s view of them. The error involved in its exclusion must, therefore, work a reversal of the judgment.

The court committed no error in refusing to allow tho defendant to read the report of the case of Toliver v. The State, 94 Ala. 111, published in a volume of the reports of this court, to the jury as evidence.

All the rulings of the court on requests for instructions, except with respect to charge 3 given for plaintiff, are referable to, and proper under, the principle that “an attorney may, before entering on the business of his client, lawfully contract for the measure of his compensation ; and any contract then made is as valid and unobjectionable as if made between other persons competent to contract with each other; but after the fiduciary relation has commenced, no subsequent agreement with his client for compensation can be supported, unless it is a fair and just remuneration for his services” — declared by this court in Dickinson v. Bradford, 59 Ala. 581—in connection with the evidence which showed that the contract relied on by the defendant, whereby plaintiff was to pay him a certain compensation, was entered into after the relation of client and attorney had been established.

Charge 3 given for plaintiff is not abstract, and asserts that if the jury find that the defendant received money belonging to the plaintiff, the burden of proof would be on him to show by a preponderance of evidence his right to hold the same. If this charge was suppos-cd to involve a tendency to mislead the jury from due consideration of the circumstances under which the money came to defendant’s hands, an explanatory instruction should have been requested. It is not otherwise objectionable.

It is unnecessary to pass upon the order of the city court refusing a new trial.

Reversed and remanded.