Hall v. Kimmer

• Decision Date: 29 April 1886
• Citation: Hall v. Kimmer, 61 Mich. 269, 28 N.W. 96 (Mich. 1886)
• Court: Michigan Supreme Court
• Parties: HALL v. KIMMER.

28 N.W. 96

61 Mich. 269

HALL v. KIMMER.

Supreme Court of Michigan

April 29, 1886

Error to Calhoun.

Henry A. Shaw, for plaintiff and appellant.

Herbert E. Winsor, for defendant.

SHERWOOD, J.

The action in this case is assumpsit, brought before a justice of the peace. The plaintiff's declaration was verbal, upon all the common counts; and added thereto was a special count on a contract for services of the plaintiff in obtaining pension money to which the defendant was entitled from the general government, whereby the plaintiff, under the arrangement, was to have not less than a quarter, and not more than one-half, of the amount received in case of success, and nothing in the case of failure. Defendant's plea was the general issue, and notice of set-off, and he further gave notice that he would show on the trial that if the plaintiff had any agreement with him for services, it was while he was acting as his agent in obtaining his pension from the government, for defendant's services as a soldier in the war of the rebellion. On the trial of the case before the justice the plaintiff recovered the sum of $300. Defendant appealed the case to the circuit court for the county of Calhoun where the cause was retried before Judge HOOKER without a jury. Upon the trial it was made to appear that the plaintiff collected pension money to the amount of $1,500, and that the defendant paid him for his services $150. The plaintiff then offered to prove that the parties submitted the plaintiff's further claim for services to arbitrators and that the arbitrators made an award that the defendant should pay the plaintiff the further sum of $100. This testimony, being, objected to, was ruled out, and the ruling was excepted to by plaintiff's counsel.

After the testimony in the case was taken the circuit judge found the following facts: "(1) Plaintiff was engaged in the business of practicing law in justice's courts, and in procuring pensions through a firm of claim agents at Washington, D.C. (2) His mode of doing business was to send to said firm the names of persons who had been in the service, receiving in return from said firm cards upon which were printed questions to be answered in writing thereon. The questions were written by him, and returned to the agents in Washington, to prepare and send forward to him proper papers, and, if possible, procured the allowance of the claim, in which case they paid plaintiff for his services. (3) Defendant, believing himself entitled to a pension, asked plaintiff's advice about the matter, and what he would charge to assist him in getting it. Plaintiff said he had received different prices, depending on the amount paid out for expenses,--in some cases one-fourth, and in others one-half, the amount procured,--but as he could not lawfully contract for over $10 he would have to leave it to defendant to say what he should have. Defendant thereupon told him to go on, and he would pay all expenses, and what was right for plaintiff's services. This was in 1879. (4) Plaintiff procured and returned card mentioned, and went with defendant to get application signed, and also performed other services in the way of obtaining proof, writing and receiving letters, etc. (5) Defendant's application was finally allowed, whereupon he paid the plaintiff ten dollars as and for the fee of the Washington firm, taking their receipt signed by plaintiff as agent therefor. Neither considered it as including any compensation to plaintiff. (6) Plaintiff never forwarded this...