Christian v. Wight

• Decision Date: 09 November 1885
• Citation: Christian v. Wight, 19 Mo.App. 165 (Kan. App. 1885)
• Parties: JOHN R. CHRISTIAN, Appellant, v. W. A. WIGHT, Respondent.
• Court: Kansas Court of Appeals

19 Mo.App. 165

JOHN R. CHRISTIAN, Appellant, v. W. A. WIGHT, Respondent.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Moberly Court of Common Pleas, HON. G. H. BURCKHARTT Judge.

Affirmed.

Statement of case by the court.

This is a suit on quantum meruit, for services rendered defendant by plaintiff as an attorney in a certain will case in the determination of which defendant was interested. Defendant had attorneys already in charge of his case, but desiring local counsel at the place of trial, he authorized one of his attorneys to employ plaintiff. That attorney's uncontradicted evidence is as follows:

" I suggested to Wight that we had better get Christian in the case. He replied that he thought he had lawyers enough, but would pay thirty or thirty-five dollars on his fee and that he would not pay any more. I told him I did not think we could get him for that.

I told Christian what had passed between Wight and myself about the matter. He said he would not accept the offer, and asked one hundred dollars as a fee. I replied to Christian I did not think Wight would pay that much. I then told him that we Priest and myself, wanted him. He replied that was a different matter, that if we wanted him he would go into the case, and he did go into the case with us, and rendered services at the trial on Wight's side of the case, as one of the attorneys. This was all that passed between the parties on the subject, so far as I can remember.

I told Christian, Wight was willing to allow him thirty or forty dollars. Said he would not work for that."

There was evidence in the cause showing plaintiff's services were reasonably worth three hundred dollars, the amount sued for. And that he has been paid fifty dollars by defendant's attorneys who engaged him; thirty dollars of which was paid them for that purpose by defendant.

The court instructed the jury as follows for the plaintiff to-wit:

" 1. If the jury find from the evidence that defendant, Wight, authorized W. A. Martin to employ John R. Christian to assist in selecting the jury in the case, as stated, and that Christian agreed to do the work for one hundred dollars, and Martin told him that he was wanted in the case, the jury must find for the plaintiff for the one hundred dollars, less any amount he has been paid, if anything, notwithstanding Wight did not authorize Martin to pay the one hundred dollars, unless Christian knew that Wight had only agreed to pay a less sum."

" 2. The court instructs the jury that if they believe from the evidence in this case, that the plaintiff rendered the services for the defendant, set forth in plaintiff's petition, and that the defendant knew that the plaintiff rendered said services, and accepted the same; that is, that defendant did not object to the said services being rendered, then the jury will find for the plaintiff whatever sum, not to exceed three hundred dollars, that they may believe from the evidence his services were worth, unless they further find that the plaintiff and defendant had a special contract relative thereto."

" 3. That the jury in fixing a reasonable value of plaintiff's services, are to be governed solely and alone by the testimony introduced in this trial."

And refused the following:

" 4. If Martin, as agent of Wight, employed Christian, and did not tell Christian that Wight had limited him in the amount he was to pay, then plaintiff is entitled to recover the contract price from Wight, less any amount he may have been paid, provided there was a contract."

" 5. If Christian said he would not act for Wight, in selecting a jury, for less than one hundred dollars, and Martin said they wanted him, and he did the services as required, he is entitled to a judgment for said sum, less any amount he has been paid."

The court gave for defendant the following:

" 1. If the jury find from the evidence that defendant instructed Martin & Priest, to employ plaintiff on condition that defendant should not be liable for more than a certain amount, and if at the time plaintiff was engaged he was informed by said Martin & Priest that plaintiff would not pay on his fee more than the said amount, and if there was no other or different employment of plaintiff by defendant, or contract, then defendant is not bound to pay more than the said amount which he so instructed said Martin & Priest to agree to pay, and if the jury so find, and further find, that before the commencement of this suit defendant paid said sum to plaintiff, through Martin & Priest, then the jury should find for the defendant."

" 2. Although the jury may find from the evidence that plaintiff did render, and defendant accept, the services as stated in plaintiff's petition, yet if defendant accepted them with the understanding on his part that said services were rendered under an agreement made with plaintiff by Martin & Priest, by which defendant was not to pay more than a certain sum for said services, then the fact that defendant did accept and receive said services, did not make him liable to pay more than the said amount fixed by said agreement."

The verdict was for defendant and plaintiff appeals.

THOROUGHMAN, CHRISTIAN & PRIEST, and L. B. ROGERS, for the appellant.

I. There is no evidence to support the verdict, and the motion for a new trial should have been granted. Hearne v. Keith, 63 Mo. 84; Robinson v. Musser, 79 Mo. 153; Hacker v. Brown, 81 Mo. 68.

II. There was no contract, and as defendant got the benefit of plaintiff's services, it was a ratification, and he is liable; if there was any negligence it was on the part of defendant. Norton v. Bell, 43 Mo. 113; Holmes v. Board Trade Kansas City, 81 Mo. 137.

III. The statements made by Wight, as to what Martin told him ought not to have been admitted. O'Neill v. Crain, 67 Mo. 250; ...