Ranney v. Lewis

• Decision Date: 02 June 1914
• Docket Number: No. 1194.,1194.
• Citation: 167 S.W. 601,182 Mo. App. 58
• Parties: RANNEY v. LEWIS et al.
• Court: Missouri Court of Appeals

167 S.W. 601

182 Mo. A. 58

RANNEY v. LEWIS et al.

No. 1194.

Springfield Court of Appeals. Missouri.

June 2, 1914.

1. EVIDENCE (§ 90) — "BURDEN OF PROOF."

The burden of proof is the duty which rests on a party asserting the affirmative of an issue of establishing it by a preponderance of the evidence, and this duty remains with the party holding the affirmative until the end of the trial.

2. TRIAL (§ 243)—CONFLICTING INSTRUCTIONS.

Where, in an action for legal services, defendant pleaded a special contract to pay $50 for the services, and the testimony of plaintiff showed that the services were reasonably worth over $250, and that only $30 had been paid, while a witness of defendant testified that $50 was more than they were worth, an instruction that the burden of proving a special contract for the services was on defendant, and that, unless he proved a contract by a preponderance of the testimony, the jury must find that there was no special contract, and an instruction that the burden of proof to make out his claim rested on plaintiff, and, unless he proved it and that there was no special agreement for $50, the verdict must be for $20 only, were inconsistent, necessitating a new trial after verdict for $20, because it could not be determined whether the jury relied on the testimony of defendant as to the value of the services or on his claim of a special contract.

3. EVIDENCE (§ 123)—PRIVATE RECORDS—ENTRIES —ADMISSIBILITY.

Entries made by an attorney as soon as a client left his office, consisting of a memoranda of the facts, were not a part of the res gestæ, and were inadmissible in his favor, in the absence of a showing that the client ever saw the entries.

4. APPEAL AND ERROR (§ 757)—QUESTIONS REVIEWABLE—RULINGS ON EVIDENCE.

Where appellant in his brief alleged in the assignments of error that the court erred in excluding evidence, but did not point to the offer of evidence, the appellate court would not search for the error and review the assignment.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Action by Robert G. Ranney against Thomas E. Lewis and another. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

Russell, Deal & Joslyn, of Charleston, for appellant. J. M. Haw, of Charleston, for respondents.

FARRINGTON, J.

This is an action instituted by appellant, Robert G. Ranney, a lawyer, for the purpose of recovering from respondents the alleged value of legal services rendered in the year 1908 in a federal court in a case wherein these respondents were plaintiffs. Appellant sued for $220 as the balance due.

Defendants in their answer denied being indebted to plaintiff in that sum, but admitted employing plaintiff to bring the suit for them in the federal court, and pleaded a special contract whereby they were to pay plaintiff $50 for his services, unless he should be caused to leave the city where he practiced in connection with their case, in which event it is alleged by defendants he was to be paid $25 per day for each day he was away; that $30 of said sum had been paid; and that the balance ($20) had been tendered and refused. Defendants also pleaded a counterclaim for damages which they claimed to have sustained by reason of plaintiff's negligence in bringing the suit in a court that did not have jurisdiction of the subject-matter thereof, thereby causing defendants herein to pay costs, etc. The court, however, instructed the jury that they should find for plaintiff on the counterclaim, and, as defendants did not appeal, this is out of the case.

Plaintiff replied by a general denial.

There was a trial by jury which found for plaintiff in the sum of $20, and he appealed.

The plaintiff at the time of the employment was a practicing lawyer of about 40 years' experience, and, at the time of the trial, was judge of the common pleas court of Cape Girardeau county. He prepared and filed a bill in the federal court, alleging that complainants were residents of Illinois and that defendants were residents of Missouri, asking $700 damages. Issue was joined, and a special master was appointed by the federal court who heard the evidence and the arguments, and made his report in which this language is used:

"This is a suit in equity in the circuit court to obtain an injunction restraining frequent trespasses on lands and to recover damages for such trespasses, and is based for its jurisdiction upon the diverse citizenship of complainants and defendants, but, as the damages to complainants' land complained of are less than $2,000 (being only $700 as alleged in complainants' bill and being only $75 as proven by testimony), this court has no jurisdiction of the subject-matter in this suit. I therefore recommend to the court that the temporary injunction heretofore issued be dissolved, and that the complainants' bill be dismissed at their costs."

The report of the special master was approved, and the bill dismissed, and complainants (respondents here) paid the costs, amounting to about $400.

The respondents herein were, at the date of the institution of the suit in the federal court, the owners of a large tract of land, for which they paid $7,000, situated in Mississippi county, in this state, on what is known as Island No. 6 in the Mississippi river, just opposite the town of Hickman, Ky. Part of their land was on the main shore below Dorena, and was a ferry landing. Persons going from the Missouri shore to Hickman would cross the chute and drive over their lands, which were situated on the island, and the ferryboats were landing against their bank, and were causing the respondents herein considerable trouble. One of the respondents, Henry E. Lewis, a licensed attorney, consulted Mr. Ranney, the appellant herein, and told him they wanted suit brought in the federal court. Mr. Ranney did everything necessary to be done in the federal court case, except being present when some depositions were taken at Hickman, Ky., at which time he was ill and in Colorado.

The attorney for the defendants in the federal court case (Mr. Kelso), testifying for the plaintiff herein, said that Mr. Ranney's services rendered in that case were worth $400 or $500. The special master also testified for Mr. Ranney that he thought $350 or $400 would be a reasonable fee for the work done. He and Kelso and plaintiff testified that the question of jurisdiction on which the federal court case went off is one about which the courts differ. Kelso testified that he raised the question of jurisdiction at every stage of the proceedings, but that the court refused to entertain his objections until the testimony should be heard. Plaintiff testified that at the time Lewis employed him:

"I advised him if there was no defense, I would charge him $50, and he spoke up very quickly and said, `There will be a defense.' I said then, `It is impossible for me to tell you then just how much labor will be required of me, and how many courts I will have to fight this case through, and it is a hard matter to fix the fee, and, if I am required to do it, I might fix it for a greater amount than my services would be worth, because I cannot tell all that would be necessary to do, and I would fix it high enough.' He said, `Well, you would be reasonable with me, wouldn't you?' And I said, `Why, as a matter of course, I would be reasonable about the fee.' And as soon as he left the office I made a memorandum in my docket of what I told him the amount of fee I would charge him."

Plaintiff offered in evidence the following entry claimed to have been made by him in his office docket at the time he was employed by defendant Henry E. Lewis to bring the suit:

"I told Henry Lewis that if there was no defense made the fee would be $50. He gave me check for $60, $50 of which to be paid to clerk to cover costs."

The court sustained defendants' objection that "no entry made by Judge Ranney could be binding upon the defendants," and plaintiff excepted. Plaintiff as a witness denied the allegations of defendants' answer.

Henry E. Lewis, one of the defendants, himself a lawyer, gave testimony supporting the averments of the answer. He stated that he never practiced in the federal courts, and that he was never a very active member of the bar; that he told Mr. Ranney he wanted the suit brought in the federal court, and perhaps told him why, but that he relied upon Ranney's advice. Defendants introduced the deposition of a lawyer practicing in Kentucky, who stated that he had examined the papers in the federal court case and ascertained why it was dismissed, and that $50 would be more than the attorney's services were worth in view of the record.

The court gave this instruction for the plaintiff:

"The court instructs the...