Cochrane v. Little

• Decision Date: 14 November 1889
• Citation: 18 A. 698,71 Md. 323
• Parties: COCHRANE v. LITTLE ET AL.
• Court: Maryland Court of Appeals

18 A. 698

71 Md. 323

COCHRANE v. LITTLE ET AL.

Court of Appeals of Maryland

November 14, 1889

Appeal from circuit court, Garrett county.

Action by Robert W. Little and Mary E. Little, as administrators with the will annexed of Jesse Korns, deceased, against John W. S. Cochrane, an attorney at law, for damages for giving improper and negligent advise to plaintiffs' testator, by reason of which he paid out, and thereby lost, a sum of money which he was not legally bound to pay. There was a verdict and judgment for plaintiffs, from which defendant appeals.

The following is the third ground of exception, referred to in the opinion of the court: Defendant called Mr. Landwehr, a competent witness, who testified that he had known Mr. Korns in his life-time, very well; that he had been the partner of his father, the administrator of his father's estate, and was the witness' business adviser for many years, and was at his place of business almost daily,--and then propounded to said witness the following question: "State whether or not you know, of your own knowledge, whether or not Mr Korns knew that if a surety who paid money for his principal could collect it from the principal after having paid it?" But the plaintiffs, by their counsel, objected to the asking of the said question; and by a divided court (Judge SYESTER ruling that it was admissible, and Judge HOFFMAN that it was not,) it was ruled inadmissible, and the court would not permit said question to be propounded to the witness, nor answered by him. At the trial the defendant offered the following prayers: " First. The defendant prays the court to instruct the jury that if they find from the evidence that there was a controversy between A. A. Wilson and Mr. Korns as to who should pay the amount of money misappropriated by Price, and that it was agreed or compromised between them that each should pay one-half, and that Korns did pay the one-half, and signed the release given in evidence in accordance with said agreement or compromise and not by reason of any advice which may have been given to him by the defendant in regard to his legal liability, then the plaintiffs are not entitled to recover in this action. Second. That if the jury believe from the testimony that Mr. Korns paid the said sum of money mentioned in the testimony, and signed the release given in evidence, for the purpose of relieving his son-in-law, Price, from prosecution, and also to relieve himself from worry and trouble, and not by reason of any advice given him by the defendant, then the plaintiffs are not entitled to recover in this action. Third. And asks the court to say to the jury that the plaintiffs cannot recover in this action, unless they shall prove to the satisfaction of the jury that the plaintiffs' testator executed the release in this case in ignorance of his legal rights, and in consequence of the advice of the defendant, and without being moved thereto by other causes and reasons. Fourth. And further prays the court to say to the jury that if they believe that after the money was paid by Mr. Korns, and after the release was signed by him, as read in evidence, and afterwards, with full knowledge as to his legal liability, Mr. Korns was satisfied, and ratified the said payment of money and the signing of the said release, then the plaintiffs cannot recover in this action. Fifth. And further prays the court to say to the jury that if they find from the evidence that after the payment of the money, and the execution of the release, in this case, plaintiffs' testator stated that he had paid the money for which this suit is brought, not because he was legally liable to pay it, but to ease his mind, or for any other reason sufficient to himself, then they may find that the plaintiffs' testator ratified the said release; and, if they so find, the plaintiffs cannot recover in this action." The following instruction was formulated by the court, and granted as a substitute for the first and second prayers of the defendant: "If the jury find from the evidence in this case that the plaintiffs' intestate, Jesse Korns, became surety for William Price and A. A. Wilson on the bond read in evidence, and that afterwards judgments were obtained in the circuit court for Allegany county against the parties to the said bond; and that at the time of entering of the said judgments the said William Price was utterly insolvent, and is still insolvent, but that the said Wilson was and still is solvent, and fully able to pay and satisfy the said judgments; and further find that the said Korns then applied to and retained the defendant as his attorney and counsellor as to his liabilities and rights as such surety on the said bond; and further find that at the time of such retainer and application the defendant was an attorney at law, admitted to practice in the court where the said judgments were of record, and that, being retained by the said Korns for the purpose above mentioned, the defendant, in respect to the liabilities and rights of the said Korns under the law as such surety, advised him that he was responsible for the one-half of the money represented in and by the said judgments, and that he could not avoid losing the one-half of the said sum of money, and also advised him to pay the one-half of the said sum of money, and to execute and deliver to the said A. A. Wilson the release read in evidence; and also further find that the said Korns acted upon the said advice, and in pursuance thereof paid the one-half of the said money, and executed and delivered the release read in evidence,--then the plaintiff is entitled to recover, provided the jury further find that the advice given to and acted upon by the said Korns was not such advice as an attorney of ordinary skill, prudence, and intelligence would or ought to have given." The third, fourth, and fifth prayers of defendant were rejected.

Argued before ALVEY, C.J., and MILLER, IRVING, BRYAN, and MCSHERRY, JJ.

H. H. Keedy, J. W. Veitch, W. P. Townsend, and G. S. Hamill, for appellant.

W. S. Bridendolph and Thos. J. Peddicord, for appellees.

ALVEY C.J.

There is a motion to dismiss this appeal, but we are of opinion upon the facts disclosed, that it ought not to prevail. The ground of the motion is that the exceptions were not prepared and signed within the time required by the rule of court. The rule referred to requires exceptions to be prepared and signed during the sittings of the term at which the trial is had, or within such extended time as the court may allow. The trial was had at the May term of the circuit court, 1889, and the verdict was rendered on the 16th, and the judgment thereon on the 21st, of May, 1889. The exceptions, while bearing date the 16th of May, were not in fact signed until the 22d of June, 1889, though it is shown that the defendant's attorney prepared bills of exceptions, and submitted them to the two judges who sat at the trial the day after the verdict was rendered, and during the sittings of the court. The attorney for the plaintiffs also prepared bills of exceptions, and presented them to the judges, containing such evidence, and presenting the case in such manner, as he deemed proper; and the delay in settling and signing the exceptions now before us grew out of a disagreement between the judges, upon contentions of counsel as to what parts of the evidence should be set out in the exceptions. While it was perfectly proper that the counsel for the appellees should insist that the bills of exceptions should be properly drawn, so as to present correctly and fairly the rulings of the trial court to the court of appeals, yet he clearly had no right to take the matter out of the hands of the counsel of the appellant, and insist that an exception prepared by himself should be signed by the judges, rather than exceptions prepared and presented by the party taking the exceptions. It is the business of the judges to see that their rulings are properly presented by the exceptions, and that the bills of...