Turnbull v. Richardson
| Decision Date | 20 April 1888 |
| Citation | 37 N.W. 499,69 Mich. 400 |
| Court | Michigan Supreme Court |
| Parties | TURNBULL ET AL. v. RICHARDSON. |
Error to circuit court, Alpena county; FRANK EMERICK, Judge.
Action by James D. Turnbull and Lemuel A. Dafoe against Diana Richardson for attorneys' fees. Plaintiffs obtained judgment for $8,000, and defendant brings error.
It is not the province of this court to set aside the verdicts of juries upon the ground that their verdicts are excessively large or small. This is a discretionary power, and resides under our practice, with the circuit judge. The only questions we can review upon writ of error and bill of exceptions are those of law which have been passed upon by the trial court. The errors assigned upon the record in this case relate principally to the rulings of the trial court holding that certain hypothetical questions were proper to be propounded to expert witnesses. The plaintiffs are attorneys and counselors at law residing at Alpena. This action is brought to recover for professional services claimed to have been rendered to the defendant at her request, and was tried before a jury at the Alpena circuit and resulted in a judgment for plaintiffs. Prior to the trial, the depositions of several attorneys residing at Detroit were taken by both parties as expert witnesses in the case. These witnesses were examined upon oral interrogatories, both direct and cross, and the depositions were returned to the circuit court. When they were offered in evidence at the trial, objections were made, and to the rulings of the court thereon error is assigned. It will conduce to a better understanding of the legal points involved if I quote so much of the bill of exceptions as the principal assignments of error are based upon. The bill of exceptions contains the following:
"This cause being called for trial, the parties being present, a jury was impaneled therein. Thereupon the plaintiff introduced evidence tending to show that on the 18th day of June, 1886, one Charles W. Richardson, of Alpena, Michigan, departed this life, in the state of Maine, leaving his last will and testament, a copy of which is hereto annexed, marked 'Exhibit A,' making a part of this bill. That said Richardson, at the time of marking said will, resided in the state of Maine, but said will was made in Canada. That, for some twenty years before his death, he came to Alpena, where he resided, with little property, and where he was largely engaged in the purchase and sale of real estate, the manufacturing and sale of lumber in a mill he owned, employing some one hundred and twenty-five laborers, in which business he was engaged, and in full operation, at the time of his death, leaving an estate of nearly, if not quite, one million dollars, consisting of said mill, vessels, lands, notes, and bonds and mortgages, bank-stock, redwood lands in California, timber rights in Canada, leaving no children, but left a widow and some twelve brothers and half-brothers, his heirs, him surviving. There was evidence given upon the trial tending to prove all the material elements contained in the said question hereinafter set forth, and asked to the witnesses Russell, Atkinson, Dickinson, Baker, and Baker. That the defendant engaged Robert J. Kelley, Esq. of Alpena, an attorney, as her chief legal adviser and counsel. That she afterwards engaged the plaintiffs and George H. Sleator, attorneys of Alpena aforesaid, as assistant counsel. That the plaintiff acted principally in behalf of his firm. That he had practiced as an attorney in Alpena for fifteen years. That on the 28th day of June, 1886, the defendant paid plaintiffs the sum of two hundred and fifty dollars, and for which they gave her a receipt, of which the following is a copy, in the handwriting of Mr. Kelley: That thereupon said Turnbull commenced to examined the matters of the estate, and all its various branches, and familiarize himself thoroughly with all the questions which could possibly arise in relation to said will and the matters of said estate. During this time, some of the heirs were opposed to the allowance of said will. That they caused to be filed June 28, 1886, in the probate court for Alpena county, a paper, a copy of which is hereto annexed, marked 'Exhibit B,' made a part hereof, and applied several times to said Turnbull to engage himself in their behalf, in opposition to the defendant, to contest the proof of said will, and to hold himself for them as their attorney, in opposition to her, which application he refused. There was also evidence given upon the trial tending to prove that defendant, at the time she engaged plaintiffs, knew that the other side were after them, and were very anxious to retain them, and, after said plaintiffs were retained, gave her agent and attorney, Mr. Kelley, orders to use plaintiff Turnbull, and that Kelley did consult, counsel, and advise with said Turnbull upon all matters that arose in the settlement of the estate. There was also evidence tending to prove that said Turnbull did everything that was necessary to accomplish the end for which he was employed. That the defendant, by Mr. Kelley, filed her petition to be appointed, and was appointed special administratrix of said estate, during the pendency of a petition to be appointed sole executrix of said will. The point of the defendant, as special administratrix, in connection of the carrying on of the business, was examined, and various other points looked up. Mr. Kelley was consulted by defendant, and he would come to Mr. Turnbull and suggest any points he desired him to examine. A Mr. McMasters, who was overseeing the running of the mill, would consult Mr. Kelley on different points; and, if there was anything Mr. Kelley wanted to know, he would consult Mr. Turnbull, and they consulted and advised together, The will was presented by Mr. Kelley to the probate court for allowance, the plaintiffs being present merely, on the 26th day of July, 1886, at which time the witnesses were produced to prove the same, and were cross-examined by the attorney for the heirs; they not producing any witnesses. The hearing occupied about three hours. The will was then allowed. The defendant gave a bond as sole executrix, and as residuary legatee, and thereby she qualified as sole executrix. That a notice was made to appeal, and a bond was executed on the part of the heirs to appeal, but the same were never filed in the probate court for said county. That, before the time had expired to perfect said appeal, the defendant paid to the said heirs the sum of one hundred and twenty thousand dollars in full settlement of any pretended right they might have to said estate, and released the same. There was also evidence tending to prove that the said heirs were making an actual contest, and would have appealed the probating of said will, if the said defendant had not settled with them before the expiration of the time limited for said appeal. It appeared the defendant made said settlement with the heirs, sold said mill and large amount of lands, and all of her interests in said vessels and other property, amounting to about three hundred thousand dollars, without consulting the plaintiffs, and without advising with them in relation thereto, but Mr. Kelley was consulted. It also appeared that the only proceedings had in the probate court for the county of Alpena, in relation to said estate, were the petitions for the appointment of a special administratrix, and filing a bond therefor, the petition for and the proof of said will, and the order allowing said will, the appointment of appraisers, and the filing of an inventory and residuary legatees' bond; also the recording of the releases of the heirs. The plaintiffs continued under their engagement, and held themselves in readiness to act for the defendant, for the period of about five months, but were not called upon to render any service after said settlement with the heirs, September 17, 1886, except as counselors with Mr. Kelley. There was no evidence that the plaintiffs were in any way engaged in the actual management of the business of the estate. The plaintiff, having called Mr. Kelley as a witness, put to him the question, 'Was the estate of Mr. Richardson all settled up?' The question was objected to, as the way to prove that was by the proceedings in the probate court. Objection overruled, and defendant excepted. The witness answered, 'Yes.' The plaintiff Turnbull, being recalled in his own behalf, was asked to state whether or not, at the time you signed the receipt copied above, you knew that it was a receipt for a retainer in the case. The question was objected to as irrelevant and immaterial, and tending to contradict a written paper, and no foundation laid for it. The objection was overruled, and defendant excepted. The witness answered: 'The receipt I signed I suppose was a receipt for the money.
I supposed it was a receipt for so much money received from Mr. Vrooman, [agent of defendant.] I never read the receipt at the time he handed it to me.' On cross-examination said: There was evidence tending to show that the two hundred and fifty dollars was not to be in full of the retainer.
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