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...
