Babbitt v. Bumpus

• Decision Date: 18 January 1889
• Citation: 41 N.W. 417,73 Mich. 331
• Court: Michigan Supreme Court
• Parties: BABBITT v. BUMPUS.

41 N.W. 417

73 Mich. 331

BABBITT v. BUMPUS.

Supreme Court of Michigan

January 18, 1889

Error to circuit court, Wayne county.

SHERWOOD, C.J.

This action is brought by plaintiff to recover of the defendant the value of services rendered for her as attorney and counselor at law in the prosecution of a suit in the circuit court for the county of Washtenaw, in chancery, wherein Isaac N. Bumpus was complainant, and Myron M. Bumpus was defendant,-a partition case,-for the division of 80 acres of land. The plaintiff appeared in the case for defendant and disclaimed, Myron having, before the suit was commenced quitclaimed his interest in the land to defendant; and nothing further seems to have been done in the case. Also for services in a suit in the Wayne circuit court, in chancery wherein the defendant and Samuel R. Bumpus were complainants and Isaac N. Bumpus was defendant, for the purpose of obtaining title to certain lands held by Isaac, who was a son of Mrs. Bumpus. The complainant's bill was dismissed on the hearing, and complainant appealed to this court, and the decree was affirmed; plaintiff being their solicitor therein. See 59 Mich. 95, 26 N.W. 410. Also for retainer and services in a suit in the circuit court for the county of Washtenaw in chancery, wherein Isaac N. Bumpus was complainant, and Mrs. Bumpus and her husband were defendants. This suit was to obtain specific performance of a contract. The defendants were beaten on the hearing, and a decree of $8,000 was rendered against Mrs. Bumpus. From this decree she appealed to this court, and the decree was reversed, and the complainant's bill was dismissed. See 53 Mich. 346, 19 N.W. 29. Also for services in a partition case in chancery, in the Washtenaw circuit, wherein Isaac N. Bumpus was complainant, against Mrs. Bumpus and others. This case was subsequently settled. Also for retainer and services in the case of the People against Myron M. Bumpus, informed against for the crime of murder. It is for retainer and services and disbursements in these cases that the plaintiff makes his claim against the defendant, amounting, as he presents his bill, to the sum of $2,165.25, and upon which he credits the defendant with the payment of $1,484.75, and brings his suit for the balance, being $680.50.

Defendant pleaded the general issue, and gave notice that she would show on the trial set-off, under the common counts, to the amount of $1,635.75; and further that such services, if rendered for the defendant, were so rendered under an agreement that the plaintiff was to have a retainer in each case, when defendant was a party, of $25, and the further sum of $25 per day for each day that the plaintiff was actually engaged in court upon the trial and hearing of said cases, and that the retainers were to be full pay for all other services, and that she has fully performed her said agreement with the plaintiff; that the plaintiff failed and neglected to perform his agreement with her, but negligently did her business, failed to take and perfect appeals when he should have done so, and mismanaged her said business, and so improperly advised her in relation thereto as to unnecessarily cause her to pay and lay out large sums of money, which she should recoup against the plaintiff. Upon the trial of the case the plaintiff recovered a verdict for $500. The defendant brings error, basing the same upon the rulings of the court upon receiving the testimony, (all of which appears in the record,) as well as upon the charge and refusals to charge.

The plaintiff was sworn in his own behalf as to the value of his services, and the first and second errors assigned are aimed at this testimony. He was a competent witness, under our statute, for that purpose, and like all other witnesses upon that subject was entitled to show his own experience and knowledge, and give his judgment as to the value of his services, and upon his own theory of the case, which was to the effect that there was no special agreement as to the amount he was to have for his work, but that, when he was inquired of by his client, or by those who were authorized by her to engage his services, as to what he charged, he told them his retainer was $25, and for services such sums as are stated in his bill, and it was entirely competent for him to testify as to his knowledge of the charges of other attorneys for like services in similar cases. He thereby only gave evidence of his own qualifications to speak of the value of his own services charged for, and this is always proper. And the same may be said of the witness Robinson's testimony, referred to in the eighth assignment of error, relating to the same subject. No error was committed in any of these rulings.

Thirteen assignments of error relate to the exclusion of testimony on the part of the defendant, showing that less was charged by the attorneys for the other side, in the same causes when the plaintiff was engaged for her, than was charged by the plaintiff, and that the services of the former were quite as important, and of as much, or even greater, value than were those of the plaintiff. The circuit judge did right in rejecting this testimony. The defendant's counsel might not have charged what their services were worth, or even performed them gratuitously, as is often the case where parties are unable to pay.

The court allowed the plaintiff, in describing the services he performed for defendant, to say that, "I had consultations with Mary Ann Bumpus, Samuel R. Bumpus, Myron Bumpus, and a great number of witnesses." Defendant moved to strike this testimony out, because such service was not specifically stated in the declaration or bill of items. This was not done. There was no error in this ruling. The testimony descriptive of the character of the services charged for was admissible under the pleadings. It was also competent to ask the plaintiff, when on the stand, what was the amount involved in the five suits, or in any one or more of them; also the total amount charged for his services in either or all of them. The amount involved in the issue has very much to do with the value of the services rendered, and the responsibility assumed by the attorney. The court stated the law correctly in his rulings upon these several subjects. The total amount charged was certainly competent, as the reasonableness of this was one of the questions to be passed upon by the jury, if they did not find a contract relating thereto as claimed by either of the parties.

Six exceptions were taken by defendant's counsel to remarks made by the circuit judge which she deemed prejudicial to her case, and which it is claimed ought not to have been made. We have examined what was said on these several occasions by the circuit judge, as it appears in the record, and we do not think either of these exceptions should be sustained. A lawyer is not an insurer of the result in a case in which he is employed, unless he makes a special contract to that effect, and for that purpose. Neither is there any implied contract, when he is employed in a case, or any matter of legal business, that he will bring to bear learning, skill or ability beyond that of the...