Lang v. Leith

• Decision Date: 13 November 1917
• Docket Number: 6 Div. 209
• Citation: 77 So. 445,16 Ala.App. 295
• Parties: LANG v. LEITH.
• Court: Alabama Court of Appeals

77 So. 445

16 Ala.App. 295

LANG v. LEITH.

6 Div. 209

Court of Appeals of Alabama

November 13, 1917

Rehearing Denied Jan. 15, 1918

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Assumpsit by M.L. Leith against Robert Lang for attorney's fees. Judgment for plaintiff, and defendant appeals. Affirmed.

Ray &amp Cooner, of Jasper, for appellant.

J.M Pennington, of Jasper, for appellee.

SAMFORD J.

1. The appellant complains that the court erred in overruling his demurrer to the fourth count of the complaint, which count was in the following words:

"(4) Plaintiff claims of the defendant the sum of $725 due for work and labor done by plaintiff at the request of defendant during the year 1915, which amount, with the interest thereon, is due and unpaid."

If the objection had been taken by timely demurrer in the court below, the demurrer would doubtless have been sustained. Smythe v. Dothan F. & M. Co., 166 Ala. 253;^[1] Kelly v. Burke, 132 Ala. 241. ^[2] But a general demurrer does not raise the point. Code 1907, § 5340; Henley v. Bush, 33 Ala. 636. The count does not state a cause of action, and hence would not support a verdict, but the verdict was general and there were good counts in the complaint to which it will be referred.

2. Plea 2 was nothing more than the general issue, and the defendant had the benefit of that plea under plea 1, which was the general issue; therefore, if there was error in sustaining a demurrer to it, injury did not result to the defendant. Supreme Court Rule 45.

3. Appellant insists that the entries on the books of appellee relating to this transaction and made at the time of employment are not competent testimony. The defendant brought out the fact on cross-examination that the entries on the book had been made by plaintiff, and himself introduced all of the entries except the items of credit and the entry: "Employed by Robert Lang." It having been shown by the defendant that the entry showed the style of the case for which the fee was charged was "Mrs. Lang et al., as Ex., etc., v. Bessie et al.," the plaintiff was entitled to the entire entry made at the time.

4. As to this assignment, the appellant cites no authority, and makes no argument. We therefore consider the point as waived.

5. There was a count in the complaint for work and labor done, hence it was competent for plaintiff to show the amount involved in the controversy, in fixing a reasonable value for his services. One of the principal elements entering into the value of services rendered by an attorney is the amount of responsibility he assumes.

6-8. The evidence that plaintiff had conferences with the other parties, in the absence of the defendant, in which they talked about the pending litigation and settlement was entirely competent, as tending to show that plaintiff was doing the work for which he was employed.

9. There is nothing in either of these rulings that could have injuriously affected the defendant.

10. The objection to the question to the witness Powell as to how much time Powell took up in the litigation with the plaintiff was not material in this case. The question was as to the value of plaintiff's services, and not that of Powell.

11. The eleventh assignment is not insisted upon.

12. Charge No. 1, refused to the defendant, was in the following words:

"If the jury are reasonably satisfied from the evidence in this case that M.L. Leith was employed by Robert Lang in a suit in equity between Sallie Cunningham, as complainant, against Mary Mulford and Martha Lang, as executor

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