Moshier v. Arnold

• Citation: 1877 WL 9791,87 Ill. 18
• Court: Supreme Court of Illinois
• Decision Date: 30 September 1877
• Parties: TIMOTHY MOSHIERv.KITCHELL & ARNOLD.

87 Ill. 18

1877 WL 9791 (Ill.)

TIMOTHY MOSHIER

v.KITCHELL & ARNOLD.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action of assumpsit, brought by Kitchell & Arnold, against Timothy Moshier, to recover attorneys' fees. The third instruction, referred to in the opinion, is as follows: “The jury are instructed, that, in law, one person has a right by word of mouth to employ another to work for a third person, and such person may properly do such work upon the credit of the party making such employment, and not upon the responsibility of the party for whom the work is done, if there be a consideration therefor. And in such case, if the work is done upon the faith of such employment, the party performing the services has the right to claim and recover from the party so employing him whatever the services were reasonably worth; and the contract need not be in writing, but is equally binding if the employment be merely by word of mouth. The Statute of Frauds is no defense against such contract, if the facts proven in this case are applicable to the above law.”

Messrs. DOUGLASS & HARVEY, for the appellant.

Messrs. WILLIAMS, MCKENZIE & CALKINS, for the appellees. Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellees brought an action against appellant to recover attorney's fees for services claimed to have been rendered for him. It appears that James Dunn and wife and Marvin Dunn were tenants of appellant, and having been injured by an engine of the Chicago, Burlington and Quincy Railroad Company, they subsequently brought suit against the company to recover for the injury. These suits led to protracted litigation, and appellees claim that they were retained by appellant to perform the legal services rendered by them in the suits. Appellant denies that he employed them, but claims that they were retained by the Dunns, and not by him, and that if he did anything from which a promise to pay them might be implied, it was after the retainer by the Dunns, and it was collateral, without consideration and not in writing, and therefore not binding.

If appellant, by an original undertaking, retained appellees, then it might be implied from circumstances. But if appellees were employed by the Dunns, anything appellant might have done or said would not have created any liability on his part, without a new consideration and an express promise, in writing, to answer for the performance of the agreement of the Dunns. An original contract may be implied from circumstances, but a collateral agreement to answer for the debt, default or miscarriage of another person can not, as the statute requires that such agreements must be in writing, and it is held that there must be a consideration to support them. It then depends upon whether there was a previous agreement, by Dunn and appellees, for the performance of these services, (or rather, with Arnold & Douglass, as appellees afterwards succeeded that firm by a change in the firm,) whether appellant is liable. If there was none, then if he did such acts, no express promise being claimed, as implied an agreement to pay for the services, he would be liable. But if there was a previous agreement with Dunn to perform the services, an agreement by appellant, as we have seen, can not be implied. And whether there was an original retainer by appellant to be implied from the...