Fraser v. Haggerty
| Decision Date | 28 July 1891 |
| Citation | 49 N.W. 616,86 Mich. 521 |
| Court | Michigan Supreme Court |
| Parties | FRASER et al. v. HAGGERTY. |
Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.
Assumpsit by Elisha A. Gates and another against Elizabeth Haggerty for legal services. Verdict and judgment for defendant, and plaintiffs bring error. Affirmed.
Fraser & Gates, in pro. per. Peter E. Park, for appellee.
Plaintiffs, as copartners, sued defendant in assumpsit for legal services alleged to have been performed by Mr. Gates for defendant. The jury found for defendant, and plaintiffs appeal. Defendant was a party to two suits, pending on the chancery side of the Wayne circuit court, in which Sylvester Larned was her solicitor of record. Mr. Gates claimed that defendant came to his office November 26, 1886; told him that she had a suit coming on in the circuit, in which Col. Larned was her solicitor, and that he was out of the city; that she offered him $30 to assist Col. Larned to the end of that case; that he refused, but consented to appear in Col. Larned's absence; that he went into court on that day, and raised some objections, the argument upon which occupied most of the forenoon; that the objections were sustained, and the hearing adjourned to December 10th; that defendant went into court on December 10th, and Col. Larned came into court during the argument; that on that day defendant said that she wanted him to continue in the case; that afterwards, December 17th, a dispute arose, she insisting that his agreement was to assist Col. Larned for $30, and he denying that agreement; that he then retired from the case, and did not appear in court on the next day; that on the next evening Col. Larned telephoned him, saying that she had authorized him (Larned) to employ plaintiffs at the rate of $15 per day for what had been done, and for what was to be done; that he was consulted from time to time by her, and she was present from time to time in court, when he was engaged at the various hearings; that he did a large amount of labor in that case, and performed other services in the other suit, and in other matters under the same arrangement; that in all he had performed 69 days of service in one case, and that his charges in that case according to the agreement amounted to $1,476.90; that the amount of his bill in the other case was $368.60. Col. Larned was called as a witness for plaintiffs, and testified that he was defendant's solicitor of record in both cases, and that on December 17th defendant authorized him to employ Mr. Gates as counsel, at $15 per day for all the work which Gates had done, as well as all that he was to do. Other witnesses were called for plaintiffs as to the value of their services, and as to the presence of Mr. Gates in cases in question, and as to defendant's presence also. Defendant denies absolutely and unequivocally the employment of plaintiff, or that she ever authorized Col. Larned to employ him, or that she had ever consulted with Gates, or authorized him to do any work, except that, in the absence of Col. Larned from the city, she called upon Gates, and asked him to act for her in Col. Larned's absence, and agreed to pay him $30 for so doing; that this was the first time she saw Gates; that after Larned's return she noticed Gates in court, and told him that their engagement was at an end, and that, if he did any further work in the case, she would not pay him for it; that she offered to pay him $30, and he declined to receive it, saying that he had done what he had out of courtesy to Col. Larned, in his absence; that afterwards she saw Gates in court, and she protested to Larned about Gates' presence, and Larned said to her, inasmuch as she did not have to pay Gates, she ought not to object; that she had employed Col. Larned to do the work in these cases, and to do all the work in them. The case went to the jury upon this testimony, and the jury found for defendant.
The first four assignments of error relate to the cross-examination of Mr. Larned respecting his employment by defendant; the execution of a written agreement between the witness and defendant at the time of his employment; and a second written agreement on December 17th; and he is asked to identify these agreements, and certain receipts and notes, which he does. It is insisted that these agreements did not bind plaintiffs, but, as bearing upon the weight and credibility to be given to the testimony of the witness, it was important to show just what the relations between the witness and defendant were, and whether or not the witness had not himself agreed to do the work in these cases. Defendant's counsel stated that he proposed to show that the witness had by these papers agreed to conduct the cases to a successful issue. The court excluded the instruments, and this is the only error which we can discover in this part of the record. It was certainly proper to show that on December 17th, the very day alluded to by both Larned and Gates as that upon which Larned had been authorized to employ Gates, and that Gates had been employed by Larned, the latter had made an agreement with defendant such as was claimed. Especially is this true in view of defendant's claim that Larned had afterwards assured her that the presence of Gates was due to his employment, not hers.
The next five assignments of error relate to the admission of defendant's testimony as to conversations with Larned, and his agreement to try one of the cases for $50. On his cross-examination Mr. Larned had been asked regarding these conversations, and had denied them. Referring again to the contract between Col. Larned and defendant, counsel for defendant made the following statement: "I offer this contract in evidence for the purpose of showing that in this paper Col. Larned agreed to try this case to a successful issue." The court excluded it. Again counsel for defendant said: "I now offer it in evidence for the purpose of contradicting the statements made by Col. Larned." It was again excluded. Counsel for defendant then asked Col. Larned: The question was objected to, and excluded. Error is assigned upon these offers and question. Defendant's claim was that she had employed Col. Larned to do all the work necessary to be done in the conduct of this litigation; that, if plaintiffs were employed by Larned, it was to do that which she had employed Larned to do, and he, not she, had agreed to pay for it. Plaintiffs in their bill of particulars included items for "drafting lis pendens; drafting receipts for costs; drafting subp nas; securing signature of judge to decrees; drafting notice of settlement of decree; preparing bills of costs; drafting order pro confesso; copying papers; serving papers; attending court 12 times when cause was not reached, and attending taxation of costs; aggregating $335.50." These items are within the scope of the solicitor's duty in the conduct of a cause, and are not ordinarily classed as duties of counsel. Plaintiffs sought to show that in their employment Larned acted as agent for defendant. Under such circumstances, courts will ordinarily allow to a cross-examination a wide range. The offers and question were entirely proper, and the error was in their exclusion. All these circumstances bore upon the question of the credibility of the witness.
The other assignments of error relate to the court's instructions to the jury. The plaintiffs tried the case upon two theories; (1) An express contract, at the rate of $15 per day; and (2) an implied contract, growing out of the performance of the services by plaintiffs, the defendant's knowledge of Gates' presence in court, her consultations with him, and the receipt by her of the benefits of the work done. The jury were instructed substantially as requested by plaintiffs on both theories, except, however, that the court instructed the jury that, if defendant did not employ plaintiffs, and did not authorize Col. Larned to employ them, there could be no recovery upon any implied contract, if they found that defendant told Mr. Gates that she would not pay for any services which plaintiff might render; that, if defendant "told Mr. Gates distinctly that she would not pay, the law would not imply from the acceptance of the services after that a promise to pay for them." There was no error in this instruction.
It is insisted upon the argument here that defendant did not claim to have notified Mr. Gates, until December 18th, that she would not pay for any further services, and that at that time plaintiffs had performed services amounting to about $250 but no testimony was offered as to the value of these particular services. Mr. Gates testified that, up to and including December 17th, he worked for defendant in court and office about 12 days. No severance was made upon the trial, and no separate request submitted by plaintiffs in relation to these services. Mr. Gates testified that defendant first asked him simply to act in the absence of Mr. Larned, but plaintiff denies that he agreed to do this for the sum of $30. Gates, however, claims that after Mr. Larned's return defendant asked him to stay in the case, and assist Col. Larned. This, however, defendant denies, and insists that the original agreement covered the services performed up to that date. Her testimony upon this point is as follows: "I says: 'Mr. Gates, you were not to work...
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