Freerks v. Nurnberg
| Decision Date | 25 February 1916 |
| Citation | 157 N.W. 119,33 N.D. 587 |
| Court | North Dakota Supreme Court |
Rehearing denied March 24, 1916.
Appeal from the County Court of Stutsman County, Hon. John U. Hemmi J. From a judgment in plaintiff's favor, defendant appeals.
Reversed and a new trial ordered.
Reversed and remanded.
John A Jorgenson and C. S. Buck (W. H. Padden and Geo. H. Stiltman, of counsel) for appellant.
The special contract claimed by the defendant, whereby plaintiff was to take, and did take defendant's litigation shown in the record on a contingent fee basis, was not and is not champertous, but was and is a valid contract for professional services. Sedgwick v. Stanton, 14 N.Y. 289; Huber v. Johnson, 68 Minn. 74, 64 Am. St. Rep. 456, 70 N.W. 806; cases cited in 6 Cyc. 858, notes 38, and 39.
When a contract is malum in se a recovery can never be had, directly or indirectly.
It is said that a recovery may sometimes be had when an illegal transaction is involved. White v. Franklin Bank, 22 Pick. 181; Stacy v. Foss, 19 Me. 335, 36 Am. Dec. 755; Morgan v. Beaumont, 121 Mass. 7; Thompson v. Williams, 58 N.H. 248; Brown v. Timmany, 20 Ohio 81; Hentig v. Staniforth, 5 Maule & S. 122, 17 Revised Rep. 293; Skinner v. Henderson, 10 Mo. 205; Harse v. Pearl Life Assur. Co. [1904] 1 K. B. 558, 3 B. R. C. 832, 73 L. J. K. B. N. S. 373, 52 Week. Rep. 457, 90 L. T. N. S. 245, 20 Times L. R. 264; American Mut. L. Ins. Co. v. Bertram, 163 Ind. 51, 64 L.R.A. 935, 70 N.E. 258; Smith v. Blachley, 188 Pa. 550, 68 Am. St. Rep. 887, 41 A. 619; Congress & E. Spring Co. v. Knowlton, 103 U.S. 49, 26 L.Ed. 347, 57 N.Y. 518; Lemon v. Grosskopf, 22 Wis. 447, 99 Am. Dec. 58; Smith v. Richmond, 114 Ky. 303, 102 Am. St. Rep. 283, 70 S.W. 846; Goodrich v. Houghton, 134 N.Y. 115, 31 N.E. 516; Wallis v. Portland, 3 Ves. Jr. 494, 4 Revised Rep. 78, 8 Bro. P. C. 161.
If the contracts of contingent fee set up in the answer are champertous, they are illegal, and no recovery can be had upon the theory of quantum meruit. Roller v. Murray, 112 Va. 780, 38 L.R.A.(N.S.) 1202, 72 S.E. 665, Ann. Cas. 1913B, 1088.
The trial court erred in striking out of defendant's answer his two counterclaims as pleaded, the constituted valid defenses to plaintiff's cause of action. 9 Cyc. 741, note 49.
Under a general denial only, a special contract cannot be shown in an action on quantum meruit. Register Printing Co. v. Willis, 57 Minn. 93, 58 N.W. 825; Stewart v. Thayer, 170 Mass. 560, 49 N.E. 120.
In a suit for a balance due upon a mutual account, the gist of the action is the fact that a balance is due. Hence it is necessary to allege and prove in establishing plaintiff's cause of action both debts and credits, and that the balance has not been paid. Pollak v. Winter, 166 Ala. 255, 139 Am. St. Rep. 33, 52 So. 829, 53 So. 339.
Even in an ordinary suit for services performed, the complaint should allege nonpayment, and show that the services were not gratuitous. Bacon v. Chapman, 85 A.D. 309, 82 N.Y.S. 545; Hunt v. Osborn, 40 Ind.App. 646, 82 N.E. 933; Taggart v. Tevanny, 1 Ind.App. 339, 27 N.E. 571; Viley v. Pettit, 96 Ky. 576, 29 S.W. 438.
The court's charge fails to cover the questions of preponderance of the evidence and burden of proof. 38 Cyc. 1691, 1748, notes 87-90.
The verdict of the jury is contradictory. It cannot find for plaintiff on his cause of action and for defendant on his counterclaims. "If the jury find specifically on the cause of action and the counterclaims, the verdict must clearly show in whose favor the balance rests and the amount thereof." Kornegay v. Kornegay, 109 N.C. 188, 13 S.E. 770; Morrison v. Few, 3 Tex.App. Civ. Cas. (Willson) 459.
Thorpe & Chase, for respondent, and M. C. Freerks, pro se.
If an illegal contract has been made, and when it is executed, the courts will not aid either party in any litigation in which it is necessary as a foundation of a claim or defense. But when the contract is executory the law always recognizes that a locus poenitenice remains, and will aid the rights of a party who assumes a position in disaffirmance of the illegal transaction. Congress & E. Spring Co. v. Knowlton, 103 U.S. 49, 26 L.Ed. 347.
When the defendant does not set up the defense of illegality, but such illegality appears from the case as made by either party, it becomes the duty of the court sua sponte to refuse to entertain the action. Drinkall v. Movius State Bank, 11 N.D. 10, 57 L.R.A. 341, 95 Am. St. Rep. 693, 88 N.W. 724; 15 Am. & Eng. Enc. Law, 1015; Johnson v. Williard, 83 Wis. 420, 53 N.W. 776.
No court will lend its assistance in any way towards carrying out the terms of an illegal contract. Drinkall v. Movius State Bank, 11 N.D. 13, 57 L.R.A. 341, 95 Am. St. Rep. 693, 88 N.W. 724; Citizens' Nat. Bank v. Mitchell, 24 Okla. 488, 103 P. 720, 20 Ann. Cas. 371; Barngrover v. Pettigrew, 128 Iowa 533, 2 L.R.A.(N.S.) 260, 111 Am. St. Rep. 206, 104 N.W. 904; Davis v. Webber, 66 Ark. 190, 45 L.R.A. 196, 74 Am. St. Rep. 81, 49 S.W. 822; Gammons v. Johnson, 69 Minn. 488, 72 N.W. 563; Potter v. Ajax Min. Co. 22 Utah 273, 61 P. 999; Husbands v. Cook, 24 Ky. L. Rep. 1320, 71 S.W. 508; Stearns v. Felker, 28 Wis. 594; Thurston v. Percival, 1 Pick. 415; Rust v. Larue, 4 Litt. (Ky.) 412, 14 Am. Dec. 172; Lynde v. Lynde, 64 N.J.Eq. 736, 58 L.R.A. 471, 97 Am. St. Rep. 692, 52 A. 694; Brush v. Carbondale, 229 Ill. 144, 82 N.E. 252, 11 Ann. Cas. 121; Buck v. Eureka, 124 Cal. 61, 56 P. 612; McCurdy v. Dillon, 135 Mich. 678, 98 N.W. 746; Elliott v. McClelland, 17 Ala. 206; Goodman v. Walker, 30 Ala. 482, 68 Am. Dec. 134; Caldwell v. Shepherd, 6 T. B. Mon. 389; Papineau v. White, 117 Ill.App. 51; Re Snyder, 190 N.Y. 66, 14 L.R.A.(N.S.) 1101, 123 Am. St. Rep. 533, 82 N.E. 742, 13 Ann. Cas. 441; 6 Cyc. 880, and cases cited; Roller v. Murray, 112 Va. 780, 38 L.R.A.(N.S.) 1202, 72 S.E. 665, Ann. Cas. 1913B, 1088.
Appellant cannot urge in the supreme court a theory of the case contrary to that upon which the case was tried, and submitted in the court below. DeLaney v. Western Stock Co. 19 N.D. 630, 125 N.W. 499.
Neither will a judgment be reversed on a theory not advanced and relied upon in the trial court. McPherson v. Julius, 17 S.D. 98, 95 N.W. 428; Crisp v. State Bank, 32 N.D. 263, 155 N.W. 78.
Trivial defects in a pleading which could not mislead should be disregarded where no objection is made before trial. Ward v. Gardin, 15 N.D. 649, 109 N.W. 57.
When the rules of pleading are ignored and no objection made, the pleadings will be taken for what they are worth on appeal. Dal v. Fischer, 20 S.D. 426, 107 N.W. 534.
"Objections to the technical sufficiency of a pleading are waived by proceeding to trial and judgment without objection." McLain v. Nurnberg, 16 N.D. 138, 112 N.W. 245.
And objections made for the first time in the supreme court come too late. First Nat. Bank v. Warner, 17 N.D. 76, 114 N.W. 1085, 17 Ann. Cas. 213.
This litigation arose in the county court of Stutsman county, and the appeal is from a judgment of that court in plaintiff's favor for the sum of $ 295 and costs.
Plaintiff, a member of the bar of Stutsman county, sued to recover on various alleged causes of action for professional services rendered to the defendant at his request under an implied promise to pay the reasonable value thereof. All the allegations of the complaint are put in issue by the answer, and as to two of the plaintiff's principal causes of action the answer by way of an affirmative defense alleges that the services were performed by plaintiff under an express contract entered into through plaintiff's solicitation whereby he agreed to bring two certain actions for defendant,--one against Theodore Thom and the other against Grant Mercantile Company et al., and to carry on all proceedings with reference thereto on a contingent basis, agreeing to pay all costs and expenses connected therewith, and to receive one third of the amount collected after deducting costs and expenses, and turn over the balance to the defendant; and if plaintiff failed to collect anything from such parties, he was to stand all costs and disbursements, and was to receive nothing from defendant for his services in connection with such suits. Defendant further alleges that he consented to employ plaintiff upon the above conditions, and not otherwise, and that plaintiff failed to recover or collect anything in either of such suits; also that defendant was mulcted in costs and expenses in connection with such litigation in certain designated sums for which he has not been recompensed by plaintiff. Defendant also interposed counterclaims to recover for such costs and expenses. Numerous other counterclaims are interposed for smaller amounts, but which it is unnecessary to notice.
At the commencement of the trial, plaintiff moved that the defenses with reference to the special contracts and also the counterclaims for costs be stricken from the answer on the ground that the special contracts thus pleaded were champertous and void, and did not constitute a defense, nor could they form the basis of counterclaims. Defendant conceded that if such contracts were champertous, no recovery on the counterclaims could be had, but insisted that the contracts were properly pleaded as defensive matter. The motion to strike was granted, and later the court refused to admit proof of such contracts. Such rulings form the basis of appellant's chief assignment of error, and the only one requiring extended notice.
Plaintiff sought to recover upon the quantum meruit for these professional services, the greater portion of which was rendered, as defendant sought to plead and prove, under the special contracts aforesaid. Plaintiff having been successful...
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