Argued
February 26, 1894
Appeal, No. 350, Jan. T., 1893, by defendant, from judgment
of C.P. Berks Co., Aug. T., 1890, No. 101, on verdict for
plaintiff. Affirmed.
Assumpsit
for professional services. Before ENDLICH, J.
The
facts appear by the opinion of the court below.
On the
trial, Charles H. Schaeffer, Esq., a witness for plaintiff
was allowed to testify, under objection and exception, as to
the value of the services. [1]
The
court charged in part as follows:
"The
questions for your determination are: (1) Has the plaintiff
shown that in 1883 a new contract was made between these
parties, which they intended to be the basis of all future
services and compensation? If he has not so shown, you will
return your verdict for defendant. If he has, and only then
you will inquire: (2) What sum fairly represents the value of
plaintiff's services rendered after 1882 in obtaining the
credit of $20,823.50?" [6]
The
plaintiff's points were, among others, as follows:
"3.
If the jury believe, from the evidence, that, by reason of
any contract or agreement entered into between the plaintiff
and the county commissioners, after the first Monday of
January, 1883, he undertook, with their knowledge, approval
and consent, the collection of a claim of the county of
Lancaster against the commonwealth, and, by his labors,
rendered subsequently to that date, secured the collection of
said claim, the verdict must be for the plaintiff for such
amount as the jury believe from the evidence his services
were worth to the county of Lancaster, with interest from
June 20, 1887." Affirmed. [2]
"4.
If the jury believe that, after the expiration of
plaintiff's term of office as solicitor for the county of
Lancaster, a new agreement was entered into between him and
the county commissioners, and that the services rendered by
him for which he seeks compensation were rendered exclusively
under the new agreement, the verdict of the jury must be in
his favor for such a sum as under the evidence will properly
compensate him for such service, with interest from June 20,
1887." Affirmed. [3]
Defendant's
points were among others as follows:
"2.
There is no testimony in the case of a contract between
plaintiff and the defendant other than that of June 28, 1882,
and all the services rendered by the plaintiff must be
regarded as having been rendered under said contract."
Reserved. [4]
3.
Request for binding instructions. Refused. [5]
Verdict
for plaintiff for $6,923.56. Defendant moved for a new trial
and for judgment n. o. v. Rules to show cause were granted
and subsequently discharged in an opinion in part as follows,
by ENDLICH, J.:
"Was
there any evidence, proper for submission to the jury, in
support of the plaintiff's principal contention? The
plaintiff, on June 28, 1882, while solicitor for the county
of Lancaster, had been employed by resolution of its board of
commissioners, to obtain from the commonwealth, in favor of
said county, a credit settlement for overpaid taxes, upon a
stipulated contingency of 25 per cent to cover his own
compensation and all expenses. In November, 1882, the claim
was rejected, and, on the first Monday of January, 1883, the
plaintiff's term of office expired. After June 13, 1883
he, in conjunction with Mr. Hensel, again endeavored to
obtain a settlement. These efforts were successful. On May 1,
1884, a credit was allowed to the county of $2,560. The
plaintiff rendered his bill to it for 25 per cent of that
amount, 'as per resolution of the board,' and
received $640. On June 18, 1887, a further credit was settled
in favor of the county for $20,823.50. The plaintiff demanded
payment to him of 25 per cent of this amount, but was
refused. He thereupon brought suit against the county, based
upon the contract evidenced by the resolution of June 28,
1882. The trial took place in Chester county, resulting in a
verdict for plaintiff for the full amount of his claim with
interest. Judgment entered thereupon was, however, reversed
by the Supreme Court, on the ground (1) that, the prosecution
of the claim of the county against the state being within the
sphere of the county solicitor's duty, for the
performance of which a fixed salary was appointed by law, a
contract between him and the county for additional
compensation for such services was void and illegal, and
incapable of ratification after the expiration of his term of
office; and (2) that there was no pretence of any new
agreement subsequently made, on which, under the pleadings
and evidence, the recovery could be sustained: Lancaster
Co. v. Fulton, 128 Pa. 48. Thereupon the plaintiff
brought this suit to recover a reasonable compensation for
services rendered to defendant, at its instance, request and
employment, subsequently to the first Monday in January,
1883, in obtaining a credit settlement of $20,823.50 from the
commonwealth in favor of said county, alleging an assumption
on the part of the latter to pay him for said services the
sum of $5,205.87 1/2. This assumption he has sought to
establish, at this trial, by evidence that, on June 13, 1883,
the then county commissioners made a new contract with him,
whereby he was to secure the services of Mr. Hensel, as
counsel for the county, in conjunction with him, to renew and
push the claim rejected in November, 1882, and in the
contingency of success to receive 25 per cent upon the amount
of the settlement to be allowed, out of which he was to pay
all expenses and compensate Mr. Hensel.
"Upon
the proof of this new contract, as a new contract, it was
agreed on both sides, depended his right to recover. As to
the amount, which, in the event of that right being made out,
would be a fair compensation, the evidence, all on the side
of the plaintiff, indicated an allowance of 25 per cent as
reasonable and proper. The case was submitted to the jury
under a charge by no means favorable to the plaintiff, a
point submitted by defendant as to the existence of any
evidence of a contract other than that of June 28, 1882,
being reserved under the authority of Chandler v. Ins.
Co., 88 Pa. 223; Koons v. Telegr. Co., 102 Pa.
164. The verdict, defective as to form, but unmistakable as
to its intent, and accordingly moulded by the court, in the
exercise of a power which is not now questioned, gave to the
plaintiff a sum equal to 25 per cent upon the amount credited
to the county on June 18, 1887, with interest from that date.
. . .
"The
present case is a purely legal one. The issue as to whether
the contract of June 28, 1882, was terminated, abandoned, and
a new contract entered into, is not one to which the
equitable rules concerning evidence to vary, add to, or alter
a written agreement apply: Holloway v. Frick, 149
Pa. 178. The evidence adduced on the affirmative of that
issue is partly circumstantial and partly direct. In so far
as it is the latter, it consists of the testimony of the
plaintiff himself. He affirms the fact of a meeting between
himself and the board of commissioners on June 13, 1883, and
narrates what took place. He says that he stated to them what
he had done during the previous year, and that he had not
been successful, that he had failed. This declaration, if it
was made by him as testified, was capable of being regarded
as a surrender of his employment under the resolution of June
28, 1882, and the commissioners were at liberty to consider
their relation with the plaintiff under the contract
evidenced by that resolution at an end, even supposing it to
have been a legally binding one. 'I then told them,'
he continues, 'that I desired to take in associate
counsel; I told them, that if they would agree to it, I would
associate Mr. Hensel with me in the prosecution of the claim
against the commonwealth.' That is to say, if the former
part of his statement is to be understood as a declaration
that his efforts were exhausted, his employment terminated,
he nevertheless desired to be re-engaged on condition that
Mr. Hensel be secured to co-operate with him. 'They were
favorable,' he says, 'to the proposition, and asked
upon what terms the services of Mr. Hensel could be procured.
I said to them: "You pay me 25 per cent of the amount
collected from the commonwealth, and I will compensate Mr.
Hensel; this to be in full for all costs and expenses, as
well as all fees." They agreed to do it and authorized
me to go ahead,' etc. If this is true, and the true
construction of what precedes it is as above indicated, then
we have here an unequivocal assertion of the making of a new
contract, upon specified terms, on June 13, 1883. What was
said and done, what was intended by what was said and done,
are questions of fact for the jury: Forrest v.
Nelson, 108 Pa. 481, 488; Maynes v. Atwater, 88
Pa. 496, 499.
"But
there is more than this. Being asked by defendant's
counsel concerning the payment of $640 on May 1, 1884
'Was that paid to you in pursuance of your contract of
June 28, 1882,' the plaintiff says: 'I suppose it was
paid to me in pursuance -- I know it was paid to me in
pursuance of an agreement that we had, that they made with me
by which I was to retain Mr. Hensel,' etc. 'Q. Was it
obtained from them under your contract of June 28, 1882? A. I
say no, it was not.' Defendant's counsel contend that
this goes for naught, being the expression of a mere opinion.
I think not. In Bank v. Kennedy, 17 Wall. 19, it was
held competent to ask a witness who was a party to a
transaction, and was present and was cognizant of the
circumstances, on whose behalf a payment was made, whether it
was made in consequence of a request, and what was its
purpose and intent; and in Brunner v. T. & T. Co.,
151 Pa. 447, our Supreme...
