Musser v. Adler

• Decision Date: 30 April 1885
• Citation: 86 Mo. 445
• Parties: MUSSER v. ADLER et al., Appellants.
• Court: Missouri Supreme Court

86 Mo. 445

MUSSER

v.ADLER et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Buchanan Circuit Court.--HON. WILLIAM H. SHERMAN, Judge.

AFFIRMED.

Woodson & Crosby and Vinton Pike for appellants.

(1) The court erred in giving plaintiff's third instruction. It is a commentary on portions of the evidence. Rose v. Spies, 44 Mo. 26; Head v. Hargrave, 105 U. S. 45. (2) Plaintiff's third instruction was also erroneous. Under it there was no need of any proof of the value of any service. (3) Plaintiff's ninth instruction was not warranted by the evidence. The court could not tell the jury that the criminal case mentioned in it was of great or little importance. (4) The instructions given for plaintiff are argumentative, commentaries on the evidence, and assume facts in issue. (5) Defendants' first and second instructions should have been given. R. S. U. S. 1878, sec. 1782; Arrington v. Sneed, 18 Tex. 135; Goodenough v. Spencer, 46 How. 347. (6) The verdict is insufficient, indefinite and uncertain. “The amount of the recovery” is not assessed. Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; R. S., sec. 3634; Bruck v. Maulsberry (S. C. Pa.) 14 Lanc. Bar, 194.

B. R. Vineyard and H. K. White for respondent.

(1) Plaintiff's instructions fairly stated the law, and are not objectionable as being commentaries on the evidence. (2) Plaintiff's ninth instruction was properly given. It was not only right, but necessary to apprize the jury of the magnitude and importance of the controversy in which plaintiff had been employed to act, and of the responsibility thrown on him thereby. Eggleston v. Boardman, 37 Mich. 18; Vilas v. Downer, 21 Vt. 419; Kentucky Bank v. Combs, 7 Pa. St. 543; Duncan v. Yancy, 1 McCord (S. C.) 149. (3) The court properly refused defendants' first and second instructions. (4) The verdict of the jury is sufficient in form. Davenport v. Fulkerson, 70 Mo. 417; Muller v. The St. L. H. Association, 73 Mo. 242; Gibson v. Lewis, 27 Mo. 533; Wilson v. Means, 25 Kan. 83.

BLACK, J.

The defendants were partners as rectifiers and wholesale dealers in liquors. They became involved in much litigation, civil and criminal, in the United States courts. The plaintiff, in connection with other attorneys, rendered them services in these suits and matters incident thereto, from 1875 to 1879, and to recover for these services from March, 1876, this suit was brought. The answer was first a general denial; and, second, new matter, by which defendants admit that plaintiff rendered them services, but they say that from 1875 to 1879 they, at different times, paid him, in all, $2,155.40, which was all his services were worth. The reply admits these payments, but alleges that they were made for services before March, 1876, except two items, for which credit is given. Among the items of the account filed with the amended petition, is one for one thousand dollars for services in preparing papers, etc., in and about procuring a remittance of ten thousand dollars from a fine of twenty thousand dollars, which had been adjudged against the defendants. Four other items were for fifty dollars each in going to Chillicothe and elsewhere, to see the district attorney and co-counsel, in reference to a compromise of a judgment in rem against defendants' property, and the prosecution of a suit of the United States against Wilkinson and others.

Evidence was offered on both sides as to the value of all these services. The plaintiff testified that an effort had been made to get the fine remitted. Cox, who had the matter in charge, wrote that it was useless to make any further effort, unless the department were satisfied that defendants were unable to pay the fine. Defendants, thereupon, consulted plaintiff, and from their showing it appeared that they had property enough to pay the fine five times over. He said he could not then tell them what to do, but would take time to study up a plan to make such showing as Cox had asked for. Some weeks after he proposed to them to have their property, which was then being assessed, assessed as low as they could, and to forward abstracts of the assessment to Washington. All this was done, from which it appeared their property did not exceed in value eleven thousand dollars. “And upon the showing thus devised and accomplished by the plaintiff, he and Judge Cox were enabled to get the government to reduce the fine one-half.” As to the other four items, his evidence tends to show an effort of himself and a co-counsel to get the district attorney to stay execution on the in rem judgment, and to prosecute the other suit against Wilkinson and others, but the evidence does not show that any improper influence was used in this behalf.

At the close of all the evidence, and on plaintiff's testimony alone, defendants asked the court to instruct that plaintiff could not recover for these five items. This the court declined to do, but did direct the jury that if any services sued for consisted in making a false statement of defendants' financial responsibility, for the purpose of deceiving the officers, and inducing them to remit the whole or a part of the fine, then for such services the plaintiff could not recover; and, further, that it was unlawful to solicit, or procure, an officer to do or not to do any act pertaining to the duties of his office, and contrary to his judgment, and if such was the purpose of any of the services rendered, then for all such the...