Caverly v. McOwen

• Decision Date: 03 January 1878
• Citation: 123 Mass. 574
• Parties: Robert B. Caverly v. Timothy McOwen
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 574

Robert B. Caverly v. Timothy McOwen

Supreme Court of Massachusetts

January 3, 1878

Argued January 9, 1877; January 10, 1877 [Syllabus Material]

Middlesex. Contract on an account annexed for services rendered and disbursements made by the plaintiff as an attorney at law. The answer contained a general denial of "each and every allegation and particular in the plaintiff's declaration and bill of particulars contained," and alleged that "if the plaintiff shall prove that he performed the services set out in his declaration and bill of particulars, or any part thereof then the defendant will show that they were unskilfully and negligently performed." Trial in the Superior Court before Colburn, J., who allowed a bill of exceptions in substance as follows:

The plaintiff's services were rendered in the bringing of a petition to the Superior Court in behalf of the defendant in this case, to revise an assessment made by the mayor and aldermen of Lowell on the petitioner's land, of a proportionate part of the expense of the construction of a sewer. That petition, with several others of the same nature, was dismissed because it had not been brought within three months from the time the petitioner received notice of the assessment; and that decision was affirmed on appeal to this court. See Custy v. Lowell, 117 Mass. 78.

The plaintiff testified that he exercised his utmost skill and care, both in the interpretation of the statute, under which the defendant's appeal was brought, and in the management and conduct of the defendant's case; and put in the testimony of experts to prove the value of his services. The defendant contended that the plaintiff was not entitled to anything; that although the services were performed and the disbursements made as alleged, yet the plaintiff's conduct in managing the defendant's case was such as to preclude him from recovering; and put in evidence the decision in Custy v. Lowell and certain papers from the files and the docket entries in the original suit in the Superior Court, and also the St. of 1873, c. 261; and contended that the construction put upon this statute by the plaintiff was such an error on his part as to warrant the jury in reducing his claim. The plaintiff objected to the admission of this documentary evidence, but the judge admitted it.

It also appeared in evidence that, after the decision in Custy v. Lowell, the plaintiff brought a petition and had a hearing before a committee of the city government of Lowell, appointed for that purpose, which resulted in a discontinuance of the sewer assessments which had stood against the defendant, and at the same time, at the expense of the city, a reconveyance was made to the defendant of his estate assessed, which, during the pendency of Custy v. Lowell, the city had sold in satisfaction of said assessments; which services by the plaintiff constituted a part of his account in this suit. The defendant denied that the results produced were, to any considerable extent, due to the plaintiff's services.

Upon this evidence the plaintiff requested the judge to give the following instructions to the jury:

"1. The defendant's pleadings on the point of unskilfulness and negligence are insufficient in law, and any testimony on that point, being objected to, ought not to be considered by the jury as having any tendency to diminish the plaintiff's damages.

"2. If the plaintiff, in performing his duties as attorney for the defendant, acted in good faith and in accordance with his own best judgment on the law and facts in the matter, his damages ought not, in law, to be diminished on account of any alleged negligence or unskilfulness.

"3. No negligence or unskilfulness on the part of the plaintiff can be used to diminish his damages, unless the alleged negligence was so gross that the defendant received no advantage whatever by the services.

"4. For mere error of opinion in the construction of a statute law, honestly acted upon, no diminution in the plaintiff's damages can be legally made."

The judge refused so to rule, but instructed the jury, among other things not excepted to, as follows:

"1. The plaintiff, when he undertook the charge of the defendant's case, was required to possess the legal knowledge, and to exercise the diligence and skill in the conduct of cases, usually possessed and exercised by ordinary lawyers in managing the cases entrusted to them. If the plaintiff possessed such knowledge, and exercised such diligence and skill, he is entitled to recover, although not successful, for his disbursements and reasonable compensation for his services, unless some express agreement was made as to the compensation he was to have, and in that case the express agreement is to govern.

"2. But if in consequence of the want of ordinary professional knowledge, diligence or skill, or through negligence on the part of the plaintiff, the plaintiff's services were of no profit to the defendant, or were a positive damage to him, such want of benefit should be taken into account in determining the value of the plaintiff's services, and the compensation which the plaintiff would otherwise be entitled to recover should be reduced by such damages as the defendant has proved he has sustained in consequence of the negligence or want of ordinary professional knowledge, diligence or skill of the plaintiff.

"3. Mere error of judgment upon a doubtful question of the construction of statutes should not be regarded as evidence of a want of competent knowledge or skill, or of negligence, but a disregard of a plain statute provision should be so regarded."

The judge also instructed the jury that, if they found that the defendant had received no benefit from the plaintiff's services and was actually damaged in...