Howell v. Smith

• Decision Date: 18 February 1896
• Citation: 108 Mich. 350,66 N.W. 218
• Court: Michigan Supreme Court
• Parties: HOWELL ET AL. v. SMITH ET AL.

66 N.W. 218

108 Mich. 350

HOWELL ET AL. v. SMITH ET AL.

Supreme Court of Michigan

February 18, 1896

Error to circuit court, St. Joseph county; George L. Yaple, Judge.

Action by Marshall L. Howell and others, copartners, doing business under the firm name and style of Howell, Carr & Barnard against Frank B. Smith and Henry B. Smith, late copartners doing business under the firm name and style of Smith Bros to recover for services alleged to have been rendered defendants by plaintiffs as attorneys at law. There was a judgment for plaintiffs, and defendants bring error. Affirmed.

R. R. Pealer and George E. Miller, for appellants.

David Knox, B. E. Andrews, and H. P. Stewart, for appellees.

LONG C.J.

This action was brought to recover for professional services rendered by the plaintiffs as attorneys at law for the defendants. Plaintiffs had verdict and judgment. Defendants bring error.

The principal contention arises upon the ruling of the court in refusing to permit the defendant Frank B. Smith, while upon the stand as a witness in his own behalf, to testify to the value of plaintiffs' services. Mr. Smith testified that he had had some experience in employing counsel, and had employed as good attorneys as the plaintiffs and those who were in as good standing in the profession, and had had occasion to settle with them. He was then asked: "From your experience and knowledge of the going or customary price of attorneys' fees, or what they charge for their services, and from your knowledge of what was done and the time that was expended in the Thurston case, what do you say the services rendered that day were worth?" This was objected to, and the objection sustained. It is contended by counsel for defendants that the witness was competent to testify to the value of these services, for the reason that he knew what services had been rendered and what other attorneys charged for like services. Counsel cites no case which sustains this contention. The general rule is stated by Lawson in his work on Expert and Opinion Evidence, holding that an ordinary witness cannot testify as to the value of services performed by an attorney; that an attorney, on the other hand, is an expert on these questions, and therefore, when one lawyer brings an action on a bill for legal services, it is the proper and usual mode to call another lawyer as a witness to ask him, considering the amount in controversy, the legal questions involved, and the importance of the case, what, in his opinion, is the value of the plaintiff's services. The reason for this rule is stated by the same author to be "that the question is one on which, from the nature of the case, it is not practicable to furnish more definite evidence than the opinion of witnesses who show themselves qualified to form well-grounded estimates of such value of their familiarity with the departments of business in which such services have been rendered. *** There is no fixed standard by which their value can be determined. Their value and reasonable price vary with the magnitude and importance of the particular case, the degree of responsibility attached to its management, the difficulty of the questions involved, the ability and reputation of counsel engaged, the labor bestowed, and other matters which will readily occur to the profession." Lawson, Exp. Ev. Rule 21. In Allis v. Day, 14 Minn. 516 (Gil. 388), the court stated, as the reason why expert testimony in this class of cases was proper, that the experience and knowledge of the ordinary juryman do not qualify him to form an opinion as to the value of services of this kind. In Hart v. Vidal, 6 Cal. 56, it was held that a witness who is not an attorney is incompetent to prove the value of an attorney's services. It was said that the witness was not a lawyer, and therefore not such an expert as the rules of evidence admit.

It is contended by counsel for defendants, however, that inasmuch as the witness had settled with other attorneys, and knew what their charges were in other cases, his testimony was competent, as his knowledge was based upon knowledge thus obtained. In Babbitt v. Bumpus, 73 Mich. 331, 41 N.W. 417, it appeared that an offer was made by the defendant to show that less was charged by the attorneys for the other side in the same case than was charged by the plaintiff, and that the services of the former were quite as important and of as much or even greater value than those rendered by the plaintiff. The testimony was rejected, and it was held by this court that the court below was not in error in refusing to receive the testimony.

It is further claimed that the court was in error in refusing to permit the defendants to put in evidence receipts taken from other attorneys upon settlements with them. Upon the trial the defendants contended that they had paid the plaintiffs in full, and taken a receipt therefor. Plaintiffs denied the execution of the receipt. While defendant Frank Smith was upon the witness stand, he was asked by counsel upon cross-examination if he ever wrote a receipt for a lawyer in his life, and asked him to sign it; and...