Caverly v. McOwen

• Decision Date: 07 January 1879
• Parties: Robert B. Caverly v. Timothy McOwen
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 222

Robert B. Caverly v. Timothy McOwen

Supreme Court of Massachusetts

January 7, 1879

Middlesex. Contract upon an account annexed for services rendered and disbursements made by the plaintiff as an attorney at law. The case was tried in the Superior Court and a verdict returned for the plaintiff for part of the amount claimed; and he alleged exceptions, which were argued in this court and overruled, and a rescript sent down accordingly. See 123 Mass. 574.

The plaintiff then filed in the Superior Court a motion in arrest of judgment and for a new trial, for the following reasons:

"1st. Because, upon the face of the records and papers, the judgment which must, if ratified, be entered up against the plaintiff, is entirely unconscionable and unjust, and would constitute a litigious unjust precedent.

"2d. Because the defendant's answer in avoidance, (or declaration in set-off, as it might be called,) on which the verdict is founded, and which the plaintiff demurred to, does not set up any matter sufficient in law to authorize the jury to ignore or cancel the plaintiff's entire claim for professional services, or any part thereof.

"3d. Because the defendant's entire avoidance is set up under the common law, and not with reference to the statute, which repeals the common law as to attorneys at law and as to the foundation of the defendant's remedy, if he had any.

"4th. Because by the records and papers it will appear that the defendant had been benefited by the plaintiff's services and had not in his allegations or proof shown that he had been in the least damaged or injured."

The defendant also at the same time moved that court to set aside the verdict, because it was against law, and against evidence and the weight of evidence, and "because the foundation of the defendant's avoidance, as set up in bar of the plaintiff's account for services then admitted and proved, depended on the Gen. Sts. c. 121, § 34, and by some oversight that statute, in its bearing upon the case had not been discovered until of late, since the trial."

These motions were overruled by Wilkinson, J.; and the plaintiff appealed to this court.

Affirmed.

R. B. Caverly, (D. B. Gove with him,) pro se.

G. Stevens, for the defendant, was not called upon.

Gray, C. J. Colt & Endicott, JJ., absent.

OPINION

Gray, C. J.

The Gen. Sts. c. 121, § 34, on which the plaintiff mainly relies, relate to the removal...