Clarke v. Alexander

• Decision Date: 06 November 1883
• Citation: 71 Ga. 500
• Court: Georgia Supreme Court
• Parties: CLARKE v. ALEXANDER & WRIGHT.

71 Ga. 500

CLARKE v. ALEXANDER & WRIGHT.

Supreme Court of Georgia.

November 6, 1883

September Term, 1883.

1. There is no merit in any of the exceptions taken in the motion for new trial to the charge complained of, or to the rulings alleged as error. The verdict is not only sustained but required by the evidence.

2. There is nothing in the complaint that plaintiff in error had no notice of the rule against the defendants in error. He furnished evidence to answer the rule, was notified of the evidence taken to establish it, and was defended in the case by counsel.

3. Whether a witness in that case was incompetent on account of the death of another person, was a question which should then have been raised; there being no appeal from the judgment in that case, it must be presumed that the losing party was satisfied that it could not be disturbed.

4. The present suit being based on a contract of indemnity given to attorneys who were about to pay over money, and they having paid over all but a small amount, which they retained erroneously supposing that it would meet a claim made upon them, and the client having given the contract of indemnity without insisting or claiming at the time that it was conditional, after loss by the attorneys, and upon the trial of the suit brought by them on the contract, there is no merit in the claim set up that the contract of indemnity was given upon condition that the attorneys should pay over the whole amount in their hands.

5. A letter which was res inter alios acta as to the plaintiffs, and was hearsay and dealt largely in matter of opinion, was properly excluded from evidence.

6. If an administrator, in order to collect money, saw fit to give his individual contract to indemnify attorneys who were about to pay it to him, against loss, he cannot complain that suit was brought against him as an individual. It is doubtful whether he could have bound the estate by such a contract.

Contracts. Actions. Attorney and Client. Witness. Before Judge HARRIS. Coweta Superior Court. March Term, 1883.

To the report contained in the decision it is only necessary to add that the following were among the grounds of the motion for new trial:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court rejected a letter written by R. T. Fouche one of the firm of Printup & Fouche, to Clarke, which was offered to show that Fouche considered that his firm should be paid out of the fee due to Mr Hill.

(3.) Because the court admitted in evidence a certified copy of the rule and judgment in the case of Printup & Fouche vs. Alexander & Wright, and the execution issued thereon.

(4.) Because the court refused a non-suit.

(5.) Because the court charged as follows: " If Wright &amp Alexander were notified by Messrs. Printup & Fouche, attorneys at law, to hold up their fee out of the money in their hands belonging to J. W. Clarke, as administrator of N. N. Smith, and if it appeared that Wright & Alexander were afterwards ruled, and the rule made absolute, and that execution issued, and they paid it off; and if it further appears that J. W. Clarke was notified of the pendency of the rule, and that after Wright & Alexander were ruled he promised to indemnify them if they would send him the money; and if it appears from the evidence that Wright & Alexander, relying on such promise, did send the money, then plaintiff ought to recover."

(6.) Because the verdict was wrong in this: J. W. Clarke could only have been bound as administrator, and not in his individual capacity, the jury having found their verdict against J. W. Clarke.

P. F. SMITH; J. S. BIGBY, for plaintiff in error.

L. H. FEATHERSTON; J. W. ALEXANDER, for defendants.

HALL Justice.

Alexander & Wright brought suit against Clarke, upon an alleged undertaking of the latter to indemnify and save them harmless against a claim of Printup & Fouche to compensation due them as attorneys at law, in bringing into court a fund then in the hands of the said Alexander & Wright, likewise attorneys at law engaged in the same litigation.

It seems that Benjamin H. Hill, Esq., had been employed under a special contract, by one N. N. Smith, to collect for him two notes, amounting to a considerable sum, made by W. R. Smith and by the terms thereof was to retain ten per cent of the sum collected, as " full compensation" for " all" his " " services," " either with or without litigation." Subsequent to the institution of these suits, the defendant died, and his widow set up a claim for dower, which gave rise to much litigation in Floyd superior court. Mr. Hill turned over these papers for...