Blalock v. Whisnant

• Decision Date: 01 November 1939
• Docket Number: 317.
• Citation: 5 S.E.2d 130,216 N.C. 417
• Parties: BLALOCK et al. v. WHISNANT.
• Court: North Carolina Supreme Court

5 S.E.2d 130

216 N.C. 417

BLALOCK et al. v. WHISNANT.

No. 317.

Supreme Court of North Carolina

November 1, 1939

Civil action to recover on alleged contract for professional services.

This action was instituted by Mark Squires, now deceased. The present plaintiffs are the executrices of his will. The complaint alleges, in substance: That about 1 August, 1926 defendant employed plaintiff as attorney to represent him on his appeal to the Supreme Court of Tennessee from judgment of criminal court of Washington County, Tennessee, sentencing him to five years in the penitentiary; that for the services to be rendered, plaintiff was to be paid "whatever was reasonably just and adequate"; that in consequence thereof "plaintiff laid out and expended considerable sums in procuring authorities, traveling expenses preparation of briefs, and the like, and attended the sitting of the said Supreme Court in the city of Knoxville in the fall of 1926 and argued his said appeal"; that on 20 November, 1926, the Supreme Court rendered judgment quashing the indictment against defendant and restoring him to his liberty, Whisnant v. State, 154 Tenn. 77, 289 S.W 492; that plaintiff's services were reasonably worth the sum of one thousand ($1,000) dollars, but defendant has wholly failed and neglected to pay plaintiff anything whatever on account thereof until 30 January, 1938, when defendant paid him the sum of fifteen dollars on account.

Defendant in answer filed, denies the contract of employment, the value of services, and payment thereon, but makes certain admissions, a portion of which plaintiffs offered in evidence as hereinafter set forth. As further defense, defendant pleads the three-year, C.S. § 441, and the ten-year, C.S. § 445, statutes of limitation, "and all other statutes of limitation known to God or man", in bar of plaintiff's alleged cause of action.

On the trial below plaintiff offered in evidence parts of the answer of the defendant: (1) Admission that at the time of filing of the answer, plaintiff, Mark Squires, was an attorney at law, resident of Caldwell County, North Carolina (2) that "this defendant admits that on or about 1 August, 1926, he stood convicted of crime in the criminal court of Washington County, Tennessee, and that he had been sentenced to serve a term of five years in the State penitentiary of Tennessee, and had given notice of appeal by and through his then counsel"; and (3) that "this defendant admits that the appeal to the Supreme Court of Tennessee was successful".

Plaintiff introduced deposition of R. H. Cate, who, referring to reported case of G. W. Whisnant v. State, 154 Tenn. 77, 289 S.W. 492, argued at Knoxville, September 1926 Term of Supreme Court of Tennessee, opinion filed 20 November, 1926, testified that he went with the plaintiff, Mark Squires, to the courtroom of said Supreme Court and was present when Mark Squires alone for appellant argued the case on appeal.

Plaintiff further offered testimony tending to show payment by defendant to Mark Squires in the sum of $15 on 29 or 30 January, 1938.

As witness for plaintiff, L. H. Wall, practicing attorney in Caldwell County, testified that he attended a hearing in this action before Rousseau, J., at Boone, and later signed and served on attorneys for defendant case on appeal; that they served counter case; that he discussed it with them and agreed on the case; that Exhibit B, a typewritten document, "is the agreed case on appeal"; that the testimony of Mark Squires given on said hearing appears therein; that Exhibit A, a printed record, is copy of the case on appeal as agreed by counsel; and that Mark Squires died on 11 September, 1938.

Thereupon, plaintiff offered to introduce in evidence testimony of Mark Squires so appearing in Exhibit B. Upon objection by defendant same was excluded. Exception. The testimony excluded was given in hearing of appeal from order of Clerk of the Superior Court refusing to grant plaintiff's motion in this action for judgment by default and inquiry. See Blalock v. Whisnant, 214 N.C. 834, 199 S.E. 292.

In the testimony offered, the witness swore that in application for extension of time to file complaint it is set forth that "the purpose of the action is to recover the sum of $1000 for legal services rendered defendant in keeping him out of the Tennessee penitentiary, which sum defendant promised to pay and which contract he wholly breached. That this is set forth in the complaint". Then referring to Mr. Strickland, who signed the application, but...