Mosgrove v. Golden

• Decision Date: 30 December 1882
• Citation: 101 Pa. 605
• Court: Pennsylvania Supreme Court
• Parties: Mosgrove, et al., <I>versus</I> Golden.

101 Pa. 605

Mosgrove, et al., versus Golden.

Supreme Court of Pennsylvania.

December 5, 1882.

December 30, 1882.

December 5th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Armstrong county: Of July Term 1882, No. 170.

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George A. Jenks (with him John Gilpin, G. C. Orr, Geo. W. Guthrie, and J. P. Colter), for the plaintiffs in error.—The legal presumption as well as the presumption of fact arising from the numerous receipts in evidence, is that all services were paid for as rendered. The plaintiff sought to go behind the "receipts in full" and claim generally a gross sum for services as a whole, for twenty-five years. The court permitted him to do this, or the ground that the case being tried without formal pleadings the defendants could not set up the bar of the statute of limitations. This was error: Spruce Creek R. R. Co. v. Stees, 27 P. F. S. 332; Coulter v. Repplier, 3 Har. 208; Bricker v. Lightner's Ex'rs, 4 Wr. 199.

The court further permitted a recovery by the plaintiff in his own name not only for services rendered by him as an individual but also for alleged services rendered by various firms of which the plaintiff was at different times a member, on the ground that he had acquired the interests of the retiring partners. This was error: Horbach v. Huey, 4 Watts 455.

This court will not encourage stale claims against dead men's estates, especially when made by a lawyer, for "professional advice and counsel" extending over a lifetime, when there is no proof of contract, nor of a single instance when any particular service was rendered except when it also appears that such service was paid and receipted for in full. There are enough ghouls seeking to fasten claims on the estates of dead men, and it would be lamentable if the courts could be made the instruments of recovery of by lawyers of extravagant claims set up after the death of their clients, springing out of their confidential relations during life.

John M. Thompson and David Barclay (Richard H. Johnston with them), for the defendants in error.—The honesty and equity of this claim was clearly proved and adjudicated, first before the arbitrators chosen by the parties (W. J. Wright, F. P. Wolf, and J. G. D. Findley), and afterwards by the learned judge and the jury in the court below. It is not possible to bring to the notice of this court the numerous and complicated facts which went to convince both those tribunals of the validity of the claim. The administrators themselves and their counsel were so convinced of the justness of the claim, that although nominal plaintiffs in error, they are here against their will, and have moved to quash the writ, as taken in their name without authority, by attorneys representing others, not parties in the court below.

The questions of law attempted to be raised by the assignments of error, 1 to 4 inclusive, cannot be considered, no specific exceptions having been taken in the court below to the portions of the charge therein assigned as error. But if considered, there is no error in them. It is well settled that the technical defence of the statute of limitations cannot be set up unless specially pleaded: Boggs v. Bard, 2 Rawle 102; Heath v. Page, 48 Pa. St. Rep. 130. Administrators are not bound to plead the statute against a debt which they believe to be legally due: Ritter's Appeal, 23 Pa. St. Rep. 95; Smith v. Porter, 1 Binn. 212; Biddle v. Moore, 3 Barr 178. After admission of all the evidence, without objection, showing a general confidential employment not affected by the beginning or ending of years, it was too late to ask the court to apply the bar of the statute; but if this be otherwise, we contend that the statute can have no application to such an employment — it cannot begin to run until the cause of action is complete, which, under the circumstances of this case, was not until the relation between the attorney and the client was dissolved by the death of the client: Marstellar v. Marstellar, 93 Pa. St. Rep. 350; Lichty v. Hugus, 55 Pa. St. Rep. 434; Foster v. Jack, 4 Watts 338; Mygatt v. Wilcox, 6 Amer. Rep. 90 (45 N. Y. 306).

Mr. Justice TRUNKEY delivered the opinion of the court, December 30th 1882.

One of the members of a partnership to whom the others have transferred their interests in the partnership property and claims, cannot sue and recover a debt which was owing to the firm, in his own name: Horbach v. Huey, 4 Watts 455. Therefore, when a person brings suit for the value of his services rendered to the defendant, he cannot join and recover in such suit, a debt owing to a partnership of which he was a member for similar services, although the debt was transferred to him before commencement of the suit.

In this action, E. S. Golden is plaintiff, and the only statement of his claim is, that he seeks "to recover for professional services and counsel rendered by him to James E. Brown about his business generally, and disbursements therein, for a number of years prior to his death." And the answer of the defendants is, that they "are uninformed as to the correctness and legality of such claim and deny the same." In the agreement for entry of the suit the parties stipulated that the "suit shall be deemed to be depending in like manner as if the said defendants had appeared to a summons." The claim was indefinite, stating no amount of demand, nor date of beginning or end of service. It is neither a declaration, nor a statement under the Act of 1806. Prior to the Act of March 14th 1872, P. L. 25, probably the verdict could not have been sustained. That Act provides that no verdict shall be set aside for want of a declaration or plea, but the court may at any time direct the filing of a declaration and the entering of a plea which shall make the pleadings and record conform to what was tried before the jury and found by the verdict. A declaration conforming to what was tried, would show a claim for services rendered the late James E. Brown by E. S. Golden individually, by Golden & Neale, and by Golden & Patton, together, covering a period of twenty-five years. The case must be disposed of as if such declaration had been filed, and the pleas entered under which the defences set up at the trial would have been heard and considered.

After remarking that the plaintiff claimed to recover the value of services for a period of twenty-five years, the court instructed the jury that if he was entitled to recover at all it was for the whole services as a whole, and that the defendants could not take advantage of the statute of limitations because it had not been specially pleaded. Had the principle which determined the case of Horbach v. Huey, supra, been heeded, in absence of evidence that Brown had contracted with Golden to pay him the debts owing by Brown to Golden & Neale, and Golden & Patton, the plaintiff would hardly have claimed to recover said debts in this suit. He cannot join debts which he cannot sue for in his own name with one which he could.

As no declaration had been filed, ground had not been laid for a plea. The record shows no claim for a debt barred by the statute of limitations; hence, there was no reason for specially pleading it. It was well said by the learned judge of the common pleas that "the law aims at the settling of men's disputes unencumbered with technicalities." But if the plaintiff set up a claim for services extending over a quarter of a century, the defendant shall have...