Bourke v. Whiting

• Decision Date: 02 October 1893
• Citation: 19 Colo. 1,34 P. 172
• Parties: BOURKE v. WHITING.
• Court: Colorado Supreme Court

34 P. 172

19 Colo. 1

BOURKE v. WHITING.

Supreme Court of Colorado

October 2, 1893

Error to Pueblo county court.

Action by Clarence S. Whiting against John C. Bourke to recover for services as an attorney at law. Plaintiff had judgment, and defendant brings error. Affirmed.

Syllabus by the Court

1. In a suit for legal services as land attorney, defendant himself testified that he knew plaintiff was a land attorney when he employed him. Held, that an objection to plaintiff's testifying orally that he was duly admitted to practice as a land attorney was without substantial merit.

2. Opinions of expert witnesses as to the value of professional services are not conclusive upon the jury; nor is such evidence absolutely essential. The jurors may, from the nature and kind of services performed, and from the time and circumstances of performance, exercise their own judgment in determining the value services; and parties submitting such an issue to the jury, without expert testimony, will not afterwards be heard to complain.

3. Testimony that a party was put to some loss of time and expense of board, etc., by reason of the destruction of legal papers, is not sufficient to sustain a claim of damages for such destruction. The reasonable worth of the papers destroyed is the proper measure of damage in such a case.

4. Gifts freely exchanged between competent parties, when consummated by actual delivery, and not prejudicial to creditors, cannot be made the subject of a lawful claim or counterclaim by one party against the other.

James W. Coulter, for plaintiff in error.

John A Collins, for defendant in error.

ELLIOTT J.

This action was commenced before a justice of the peace, and was afterwards tried on appeal by the county court. The issues must therefore be gathered from the oral claims made by the respective parties as preserved by the bill of exceptions. It appears that plaintiff, Whiting, was employed by defendant Bourke, to perform certain legal services in and about a number of land contest cases in which Bourke was interested. Part of the services so performed were paid for at an agreed price. Plaintiff also performed other services, for which he made a further charge of $77.50. For the latter services this suit was brought.

1. The cases were pending in the United States land office at Pueblo, Colo., and it is assigned for error that plaintiff did not prove that he was a land attorney by competent evidence. No complaint is made that plaintiff did not skillfully perform the services for which he was employed. Defendant himself testified that he knew Whiting was a land attorney when he employed him; hence the objection to Whiting's testifying orally that he was duly admitted to practice as land attorney for the United States land office at Pueblo is without substantial merit.

2. It is assigned for error that the court erred in allowing the jury to determine from the evidence what the services of plaintiff were reasonably worth. It is true no expert witnesses were sworn as to the value of the services. In a suit to recover the value of professional services witnesses of proper knowledge and experience may be called to give their opinions under oath as to the value of such services. But such opinions are not conclusive upon the jury; nor is it absolutely essential that expert evidence should be produced in such cases. The jurors have the right, when the nature and kind of services performed are shown in evidence, together with the time and circumstances of performance, to exercise their own judgment in determining the value of such services; and, if parties submit such an issue to the jury without expert testimony, they will not afterwards be heard to complain. Leitensdorfer v. King, 7 Colo. 436, 4 P. 37.

3. Before the cases were concluded in the land office, a disagreement arose as to plaintiff's compensation. He charged $77.50. Defendant offered to pay $20. Finally plaintiff offered to accept $50; and, when this was refused, he tore up certain of the papers which he had prepared. Upon this matter defendant testified: 'I considered that I was damaged to the extent of $40 by the tearing up of those papers. I was compelled to pay $10 for the republication to begin the contest cases over again, and was put to some loss of time and expense of board, etc.,...