Palmer v. Miller

• Decision Date: 29 March 1898
• Docket Number: 2,394
• Parties: PALMER v. MILLER
• Court: Indiana Appellate Court

49 N.E. 975

19 Ind.App. 624

PALMER v. MILLER

No. 2,394

Court of Appeals of Indiana

March 29, 1898

From the Boone Circuit Court.

Reversed.

Palmer & Palmer and C. M. Zion, for appellant.

P. H Dutch, for appellee.

OPINION

ROBINSON, C. J.

Appellant sued appellee for services rendered in transcribing and furnishing copies of evidence used by the attorney of appellee in a certain suit in which appellee was plaintiff. Appellee, in the case at bar, was given judgment for costs.

The undisputed evidence, so far as material, shows that appellee had employed an attorney to conduct a suit in his behalf against a railroad company. Appellant, a court reporter furnished longhand copies of the evidence to the attorney at the attorney's request, which were used during the trial in the examination of witnesses, framing hypothetical questions, preparing the special verdict, and in the final argument of the case. The trial continued about seventeen days, and appellee was present in court all that time except one-half day. The evidence was transcribed by appellant during the adjournments of court, and at nights, and was furnished and used from day to day during the trial.

Appellee testified that he did not know the copies were being furnished at his expense. But he does not deny that he was present when the copies were furnished from time to time, and saw them used by his attorneys in the conduct of his case throughout the trial.

It is not claimed that the furnishing of such copies was unusual or unreasonable in the proper management and conduct of such a case. Upon the undisputed facts it appears that the copies were used in appellee's presence, and for his benefit, and under such circumstances it must be held it was done with his knowledge and consent. From such a state of facts the law implies a promise upon his part to pay for such copies what they are reasonably worth.

There are no circumstances to show that the services were intended by appellant or expected by appellee to be gratuitous, but they were such as persons ordinarily expect to be paid for. The copies were furnished and used from day to day for a number of days with appellee's knowledge, and under such circumstances we think the maxim Qui tacet consentire videtur applies; that in view of the facts appellee was fairly called upon either to deny or admit his liability. Thus it has been said, "But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak." Day v. Caton, 119 Mass. 513.

In some...