Landis & Schick v. Watts
| Decision Date | 11 June 1909 |
| Docket Number | 15,281 |
| Citation | 121 N.W. 980,84 Neb. 671 |
| Parties | LANDIS & SCHICK, APPELLANTS, v. GEORGE WATTS, APPELLEE |
| Court | Nebraska Supreme Court |
This case is before us on rehearing. See 82 Neb. 359. Plaintiffs declared upon an account stated for a balance due as attorneys' fees in a case tried in the district court for Seward county. The answer denies that there was any account stated, and sets out other matter which it is not necessary to consider. Plaintiffs having declared upon an account stated, all that was necessary for the defendant to do was to meet that claim. Failing to establish the account stated, plaintiffs' action would fail, regardless of whether their claim for attorneys' fees was reasonable or not.
On the trial Mr. Landis and Mr. Schick, composing the firm of Landis & Schick, attorneys at law, both testified that they were employed generally by the defendant in an action for personal injuries, which had been brought against defendant in the district court for Seward county by one Weinbar, for $ 12,700 damages. Defendant had already employed two other lawyers, who should be designated as chief counsel in the case. For reasons of his own, defendant saw fit to employ plaintiffs to assist the attorneys who had been already employed. Mr. Landis testified that as soon as defendant employed them he went to the clerk's office for the files, and instructed the clerk to enter plaintiffs' names on the docket as counsel; that shortly after returning to his office with the files, This testimony by Mr. Landis is not contradicted by either Mr. Watts or Mr. Carey. Mr. Landis and Mr. Schick both testified that after they were retained, and prior to the trial, defendant came to their office on a number of occasions and spent a good deal of time going over the case, talking about the witnesses and what they would testify to; that they went over the case very fully with the defendant and with defendant's son; that they spent a large amount of time examining the law of personal injury cases; that they examined all of the cases in this court, borrowed Labatt, on Master and Servant, a two volume work, and made a careful examination of that; that they had conferences at different times with senior counsel in the case, and discussed with them the preparation of instructions and the advisability of moving for a directed verdict when plaintiff rested. The evidence shows that plaintiffs were very active and energetic in the case from the time of their employment until the case was finally brought to a successful issue upon the trial. Defendant seeks to escape responsibility for all this by claiming that plaintiffs were not employed for any such purpose, and by the expert witnesses introduced seeks to escape liability for anything done by plaintiffs except during the two days of actual trial in court, the time when, it seems to us, their services would have been of the least value to defendant. Defendant had two older and more experienced lawyers to try the case, and it is doubtful whether plaintiffs could render them very much assistance in the court room during the trial, but such as they could render was rendered by Mr. Landis, the senior member of plaintiffs' firm. The evidence fairly indicates that the plaintiffs were employed because they were young and active, and would be apt to be energetic in getting the witnesses together, the evidence in shape, and in preparing for the trial of the important case then about to be tried. At any rate, the uncontradicted evidence shows that they performed those services, and there is not even an attempt at proof in the record that the senior counsel in the case ever did a thing along those lines, but relied entirely upon the work of plaintiffs. After plaintiffs had testified to all of these facts, partly in chief and largely in rebuttal, defendant was called to the stand on surrebuttal. This testimony by defendant strongly corroborates everything testified to by plaintiffs. He does not deny any of their testimony, but strongly corroborates them.
The evidence of Mr. Schick, and of defendant himself, shows that some time subsequent to the trial defendant called at plaintiffs' office, and inquired what their charge was going to be for services in that case. Mr. Landis being absent, Mr. Schick told him that they had not considered the matter yet, but that when Mr. Landis returned they would take the matter up and would advise him. On Mr. Landis' return plaintiffs decided upon the amount they proposed to charge for their services, and on December 4, 1905, wrote defendant: Defendant received the letter, and on December 15 called at the office of plaintiffs. Defendant testified that when he called at their office he told them that their fee was excessive, and that he would not pay it; that he would pay them $ 100 and no more, and that that was $ 50 more than their services had been worth to him, and positively denies that there was any agreement to pay the $ 225 by paying $ 100 in cash and the remainder by March 1 following. Plaintiffs both testify that there was no such talk on the part of defendant; that there was no serious disagreement between them; that, while defendant said their charge was high, yet he agreed to it, and stated that he would pay them the whole amount that day if they desired, but if they would accept $ 100 then and wait for the remainder until March 1, at which time he expected to be getting in some money, it would be quite an accommodation to him, and that they agreed to that proposition. Mr. Landis testified that they gave him a receipt, specifying as follows: "Received $ 100 in part payment on the Watts-Weinbar settlement of $ 225." Defendant admits that they gave him a receipt for the $ 100, but claims that the receipt is lost. If, as testified by him, they were attempting to hold him up for an excessive fee, and he was paying them $ 100 and stating to them that that was all he ever intended to pay, it seems incredible that he would have accepted, without protest, a receipt which, upon its face, declared that it was a receipt for $ 100 in part payment of a settlement of $ 225, and that Mr. Watts would have failed to carefully preserve his receipt. If it had been preserved and produced in evidence, it would have furnished strong written proof of the account stated. In this condition of the record could defendant be permitted to introduce testimony as to the reasonable value of the services performed by plaintiffs? We think not. In the first paragraph of the syllabus in our former opinion we say: "If the evidence relative to a material fact is conflicting, any collateral fact or circumstance tending in a reasonable degree to establish the probability or improbability of the disputed fact is relevant and properly admitted, although it may not tend directly to prove any issue in the case." In a certain class of cases this would be the law, but, as applied to the facts in the case at bar, we feel that that rule is not applicable. If the testimony for and against the account stated had been largely circumstantial, or enshrouded in doubt, or ambiguous, then the introduction of collateral facts or circumstances might have been permissible; but here it is not a question of doubt or uncertainty. It was a square question of veracity. The two plaintiffs had sworn positively to the account. They had shown that a paper had been given by them to defendant, stating the account in express terms. Defendant had sworn positively that no such an account stated had been agreed upon. Under such circumstances we do not think it was permissible for the defendant to offer testimony as to the value of the services which plaintiffs had performed.
But conceding that the testimony attempted to be introduced is within the rule announced in the cases cited in our former opinion, and that defendant had a right to introduce testimony as to the reasonable value of the services as a collateral fact or circumstance tending to establish the probability or improbability of the disputed fact, viz., the account stated, the evidence offered to prove that fact was, under the settled rule in this state, clearly inadmissible. Three lawyers were placed upon the stand by defendant, and the same hypothetical question was propounded to each. It is only necessary to refer to one, as that is similar to the other two. Mr. J. J. Thomas was introduced as a witness, and we have the following: ...
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