Leitensdorfer v. King

• Decision Date: 16 May 1884
• Parties: LEITENSDORFER and others v. KING, Adm'x.
• Court: Colorado Supreme Court

4 P. 37

7 Colo. 436

LEITENSDORFER and others v. KING, Adm'x.

Supreme Court of Colorado

May 16, 1884

In practice, under the Code, the distinctions in the common law forms of action must be ignored; and, under an averment of indebitatus assumpsit in a complaint, a recovery on a quantum meruit may be had. Expert testimony as to the value of the services of an attorney at law is not conclusive, but is introduced to supplement the general knowledge of a jury in the matter, and to aid them in the exercise of their judgment, in order that their conclusion may be just.

An instruction given to a jury that their 'finding as to such value should be a fair and reasonable sum, according to the evidence, after considering all the evidence upon the subject; no more and no less,' does not confine them to the opinions of attorneys at law sworn on the subject, but it means that they must determine the question according to their own knowledge and common sense as applied to the evidence, including the expert testimony.

The failure of a court to state specifically to a jury the rule relating to expert testimony, no such instruction having been asked, is not error.

Where a contract was entered into for the payment of an attorney's fees upon the attainment of ultimate success it was not error for a court to fix upon the entry of a final decree in the circuit court of the United States as such ultimate success, in view of the pleadings and evidence.

A judgment will not be reversed for error without prejudice.

When testimony is conflicting, a finding of a jury will not be disturbed unless it is so unreasonable as to create a strong presumption that they were misled, controlled by improper motives, or influenced by passion or prejudice.

In view of the circumstances, a verdict of a jury giving an attorney at law $10,000 for his services in a case, held not excessive.

Error to district court of Arapahoe county.

Frank Titus, for plaintiff in error.

Wells, Smith & Macon and Robert T. McNeil for defendant in error.

HELM J.

Defendant in error brought suit as administratrix in the court below to recover fees for services rendered by her intestate, John Q A. King, in his life-time. Deceased was employed in 1877 by plaintiffs in error as local attorney and counselor in the federal court at Denver. This suit involved the consideration of novel and complicated questions, and, though prosecuted with diligence, was not determined till July, 1880. At that time a decree was rendered in favor of plaintiffs in error, who were plaintiffs therein. Gov. King died after the cause was submitted, but before entry of the decree. During this period of nearly three years he received no compensation whatever from plaintiffs in error. He was also retained by them, and took some steps, in another suit subsequently commenced against them. In connection with this latter cause he was paid a retainer fee of $50, but no more. The complaint in this case avers the performance of these services at the instance and request of plaintiffs in error, and their failure to pay the fees therefor, and places the reasonable amount thereof at $10,000. The answer, among other things, pleads a special and distinct 'understanding and agreement' with deceased that his compensation for services in the prior suit should be the reasonable value thereof, and should be wholly contingent, and entirely dependent, upon the ultimate success of the complainants; that said suit is yet undetermined,--defendants have not yet recovered the lands involved,--and therefore the contingency has not happened. It also avers that deceased was simply employed to act as merely assistant counsel, and only for the purpose of attending to motions and other interlocutory proceedings. These averments were traversed by the replication. The jury returned a verdict in favor of the plaintiff, who is now defendant in error, for the full amount demanded in the complaint. To reverse the judgment rendered thereon the cause is brought to this court.

The first assignment of error relates entirely to the instructions given at the trial in behalf of the plaintiff. Four of the objections stated and discussed by counsel under this assignment we deem important, and will therefore proceed to consider them:

1. It is claimed that plaintiff in the complaint averred, or undertook to aver, a cause of action in indebitatus assumpsit, and therefore, the instructions and recovery thereunder being upon the theory that the suit was on a quantum meruit, were clearly erroneous. The language of the complaint is in some respects similar to that used under the former practice in the indebitatus count but even with that practice this particular point would not be well taken. It is held that under the indebitatus count, properly stated in his declaration, plaintiff may recover whatever is due him, although no specific sum was agreed upon; and that the quantum meruit count is unnecessary. Puterbaugh, Pl. & Pr. 69, 72, and citations. But it is sufficient answer to counsel's argument to suggest that our Code of Procedure ignores these distinctions in the forms of action; that the complaint complies with the Code requirements by stating in concise language the ultimate facts constituting the alleged cause of action. Had an objection been interposed at the proper time, it is possible that the district court would have required a more specific statement of some of the matters averred. The complaint does not aver that defendants promised to pay, (a legal conclusion, the statement of which seems to have been required under the old practice to enable him to recover on the quantum meruit;) it does, however, declare that the services were rendered at the request of defendants, and that they thereby became indebted, etc. No material averment, under the present practice, is...