Baxter v. Szucs

• Decision Date: 03 December 1929
• Docket Number: No. 167.,167.
• Citation: 248 Mich. 672,227 N.W. 666
• Parties: BAXTER v. SZUCS.
• Court: Michigan Supreme Court

248 Mich. 672

227 N.W. 666

BAXTER

v.SZUCS.

No. 167.

Supreme Court of Michigan.

Dec. 3, 1929.

Error to Circuit Court, Wayne County; Theodore J. Richter, Judge.

Action by Aldrich Baxter against Vincent Szucs.Judgment for plaintiff, and defendant brings error.Reversed.

Argued before the Entire Bench.

L. E. Barnett, of Hastings, for appellant.

Aldrich Baxter, of Detroit, for appellee.

FEAD, J.

This is review of a summary judgment for plaintiff.

In addition to the common counts, plaintiff's original declaration contained a count on express contract to pay him $1,500 as compensation for his services as defendant's attorney, in a divorce suit which was discontinued before hearing.Plaintiff moved for summary judgment, supported by his own affidavit that such express contract had been made; that the specific sum of $1,500 had been agreed upon; and that $150 had been paid on account.He had summary judgment for $1,350.In opposition to motion to set aside this judgment, plaintiff made affidavit that, prior to the time of the agreement, he had been paid $320; that it was agreed between him and defendant that the fair and reasonable value of plaintiff's services was in excess of $1,820; that the parties then agreed upon compensation of $1,500 in addition to sums already paid; that defendant paid him $150 and promised to pay the balance within six weeks.The judgment was set aside on the ground that defendant's affidavit of merits had denied express agreement for a specific amount.

Plaintiff, by leave of court, then filed an amended declaration on the common counts and with special count on express contract to pay him reasonble compensation.He made a new motion for summary judgment, supporting it by his own affidavit that the agreement had been made as claimed in the amended declaration, and that the reasonable value of his services was $3,000.Defendant filed a new affidavit of merits in which, among other things, he stated he had paid plaintiff $470, ‘which reasonably if not overpaid plaintiff for the necessary work he did in that case in the interest and behalf of this deponent, and deponent never agreed to pay any further sum of money.'

The affidavit was made by defendant, a layman, and was not supported by the affidavit of an attorney of the value of plaintiff's services.Because a layman is not a competent witness to testify to the value of an attorney's services, Howell v. Smith, 108 Mich. 350, 66 N. W. 218, the court held the affidavit of merits insufficient, under that part of Circuit Court Rule 34 which reads: ‘The facts so stated shall be the personal knowledge of the affiant, shall be set forth in the affidavit with particularity, and the affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.'

Summary judgment for $2,530 was entered for plaintiff, and a motion to vacate was denied.

The province of the court, on motion for summary judgment, is to determine judicially whether there is an issue of fact which, if resolved in favor of defendant, would...