Greer v. Latimer

• Decision Date: 16 July 1896
• Citation: Greer v. Latimer, 25 S. E. 136, 47 S. C. 176 (S.C. 1896)
• Parties: GREER. v. LATIMER.
• Court: South Carolina Supreme Court

47 S.C. 176

25 S.E. 136

GREER.

v.LATIMER.

Supreme Court of South Carolina.

July 16, 1896.

Evidence—Action on Contract—Pleading—Effect of Admissions—Legal Conclusions—Interest.

L Upon an issue as to the expense incurred by a defendant in defending himself against liability on a certain claim, where there were other claims also involved in the same action, statements made by defendant to his attorney when he paid them for their services as to how much of the fee was to be applied on the claim in question are competent evidence, its weight being for the jury.

2. In an action on a written contract, not under seal, which does not import or express a consideration, the burden is on plaintiff to allege and prove a consideration, and defendant may rely on want of consideration without pleading it as an affirmative defense.

3. An admission in an answer that the allegations of a paragraph of the complaint are true does not admit that plaintiff is entitled to interest as stated in said paragraph; such statement being a conclusion of law, and not an allegation of fact

4. In an action on a promise to pay plaintiff a sum of money in case the promisor should not be compelled to pay a certain claim against him, less the expense of defending against such claim, it not appearing that the money was the property of plaintiff, defendant cannot be charged with interest on the entire amount from the date of the promise, no sum being demandable until the happening of the contingency named.

Appeal from common pleas circuit court of Greenville county; Benet Judge.

Action by P. Alice Greer against J. P. Latimer. Judgment for plaintiff, and defendant appeals. Reversed.

Charge of the Court

"Mr. Foreman and Gentlemen of the Jury: It is not often that a case is so placed before a jury that there is scarcely any issue of law to decide, and very few issues of fact In this case the plaintiffs set forth certain allegations in the first and second paragraphs of the complaint and the defendant admits them. The only issue before you now is how much, if at all, is the amount of three hundred and thirty-five dollars to be reduced on account of fees and expenses incurred in defending a certain suit. As you heard repeatedly in the trial on the 2d of May, 1890, Dr. Latimer signed this paper [reading: 'This is to certify that I have received from M. F. Ansel, Atty., ' etc.]. That, of course, is binding upon Dr. Latimer. He here promises to pay Mrs. Greer three hundred and thirty-five dollars, less the expense in defending a certain suit, provided he is not called upon to account to the estate of Hewlett Sullivan for a judgment obtained by Mr. Greer against him. In the second paragraph of the com-plaint, it says that he was not called on to account, and the defendant admits that he was not called on to account; so the only question for you is, what expense did he incur in defending that Greer judgment? and, when you ascertain that, deduct that from the three hundred and thirty-five dollars which he admits he promised to Mrs. Greer. The defendant sets up, however, a counterclaim, alleging that Mrs. Greer owes him, on account of a note, fifty dollars and interest from date at 7 per cent., and that no part of the same has been paid. The plaintiff, replying to that counterclaim, admits that she gave some note to the defendant, but demands strict proof of same, and says that the defendant had in his possession a note of about the same amount, —the Scruggs note, —which was paid."

Mr. Ansel: "The Greer note was for fifty dollars, and the Scruggs note forty-four dollars, and four payments on it, which should be credited on the Greer note; so the counterclaim now amounts to ten dollars and interest."

The Court: "Then it is admitted by the plaintiff that Mrs. Greer does owe him ten dollars and Interest. It seems from the testimony that Dr. Latimer, executor of Hewlett Sullivan's estate, was sued; that an effort was made to deprive him of his office of executor, and to appoint a receiver; and that, in his answer, he set up an account of thirty-one thousand dollars. And, by the way, it was stated in testimony that the estate of Hewlett Sullivan was valued at one hundred thousand dollars, and it was stated on the stand, I think, that it was not worth that much. The Greer judgment was some eleven hundred dollars, and Dr. Latimer agreed that if he was not required to pay that, that he would pay Mrs. Greer three hundred and thirty-five dollars; and you have heard testimony of counsel who represented Dr. Latimer in that case. You heard counsel testify as to what was involved in the case, and some of them were asked what was the relative importance of the Greer judgment to the rest involved in the case. Dr. Latimer said he paid about eleven hundred dollars in fees. Now, it Is for you to say whether that eleven hundred dollars was paid in defending the Greer judgment, or was it in part for defending his suit to oust him as executor and other matters? From what you have heard to-day here, you will have to decide. If the Greer judgment was defended in that suit, what was its importance with regard to the proceedings to remove Dr. Latimer as executor and the litigation for thirty-one thousand dollars? If he has paid out eleven hundred dollars in fees, was that amount paid in defending the Greer judgment, or was it paid to counsel for all of the issues, including the Greer judgment, and, if so, what amount of the fees should be regarded as a reasonable fee to be paid the attor neys for their services as regards the Greer judgment? You must say, therefore, how much of the bill of fees as testified to is to be regarded as defending the Greer judgment; and, in fixing the fee, you will be guided by a reasonable amount. A jury is never to be too liberal or too stingy. If you come to the conclusion from the testimony that the services rendered in defending the Greer judgment by Dr. Latimer were reasonably worth eleven hundred dollars, say so. If you come to the conclusion that simply as to the Greer judgment, that a small amount would be a reasonable fee, why, say so, on the testimony. Counsel for the plaintiff here concedes that he would not object to your finding fifty dollars as a reasonable fee. So, gentlemen, you will take the case, and decide whether Mrs. Greer has been paid anything, or has the amount which Dr. Latimer was to pay her been all taken up in defending the Greer judgment. If it has not, then you will say how much is to be paid her. If you come to the conclusion that Mrs. Greer is to recover anything at all, you will calculate the interest at 7 per cent, on three hundred and thirty-five dollars from the 2d of May, 1890, and then deduct what you think will be a reasonable amount to be allowed Dr. Latimer for lawyers' fees in defending the Greer judgment. If he has paid the lawyers to-defending the Greer judgment, he is entitled to have a credit for that amount. And you will also consider the counterclaim."

Exceptions.

"(1) In ruling incompetent the. question asked the witness Jos. A. McCullough, 'How much of that [fee] reasonably ought to have gone to your services in defending this very Greer judgment? said question being relevant, since, under his honor's charge, the jury was required to say 'how much of the bill of fees as testified to is to be regarded as defending the Greer judgment.' (2) In not allowing the witnesses for the defendant, Jos. A. McCullough and J. A. Mooney, to tell the directions given them by the defendant at the time he paid them moneys for services rendered him individually, and as executor, in litigation of which defending the Greer judgment was a part, as to the proportion of their said fees to be credited on account of defending the Greer judgment; said testimony being competent and responsive to the issues made by the pleadings. (3) In not permitting the witness J. A. Mooney to testify as to the contents of a lost receipt which he gave the defendant for moneys paid him by defendant in his official and individual capacity for representing him in an action in which it was necessary to defend the Greer judgment, which receipt stated the amount paid on account thereof; said question and answer being relevant to show the amount actually paid by the defendant in defending the Greer Judgment (4) In not allowing the said witness to testify as to what defendant told him at the time said receipt was given, said testimony being part of the res gestæ. (5) In not allowing the defendant to testify as to the contents of the said receipt, the loss of same having been established, and in holding with reference thereto, 'You cannot state what that receipt contains, because Mr. Mooney stated that that receipt was drawn according to your instructions;' defendant having previously testified that said receipt was drawn 'not fully' according to his instructions, and, even if it were, he had a right to direct the application of the money paid by him to his attorney. (6) In ruling incompetent and not allowing the witness George W. Dillard to answer the question, 'Do you know the contents of that receipt?' said receipt having been placed in his hands, and misplaced by him, and the said question being material to the issues in said case. (7) In not allowing attorney for the defendant to argue the question of nudum pactum to the jury as a matter of evidence, and in holding that defendant could not avail himself of such matter unless specially pleaded. (8) In charging the jury with reference to the agreement of defendant sued on, That, of course, is binding upon Dr. Latimer;' whereas he should have held that it was not binding unless based upon a valuable consideration. (9) In charging the jury that if the Greer judgment was part of another suit and was defended in that suit, it was for them to decide its relative importance; such question being one of law, to be decided by the court upon an inspection of the pleadings and record. (10) In charging the jury that it...