Pollak v. Gunter & Gunter

• Decision Date: 24 May 1909
• Citation: 50 So. 155,162 Ala. 317
• Parties: POLLAK v. GUNTER & GUNTER.
• Court: Alabama Supreme Court

50 So. 155

162 Ala. 317

POLLAK v. GUNTER & GUNTER.

Supreme Court of Alabama

May 24, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Action by Gunter & Gunter against Ignatius Pollak. From a judgment in favor of plaintiffs, defendant appeals. Motion to strike bill of exceptions overruled, judgment reversed, and cause remanded.

Brown &amp Kyle, for appellant.

Gunter & Gunter, George H. Parker, and F. S. White, for appellees.

McCLELLAN J.

Action on the common counts by appellees against appellant. The basis for the recovery sought was services rendered by appellees as attorneys for appellant.

The motion to strike the bill must be overruled. While the bill appears to be unreasonably particular and also extended there is an assignment of error noting practically every page of the bill as transcribed here, and, besides, the affirmative charge involved affords sufficient justification for the extended character of the bill, to save it from being stricken.

In treating the appeal we will undertake to consider only a few of the upwards of 200 errors assigned. Especially is this permissible since the rulings to be stated will, on the trial to recur, affect to alter in a material degree the posture of the case as now appears, and probably render unimportant much of the matter now the subject of laborious and greatly extended discussion in briefs of counsel.

Among other elements asserted as furnishing a basis for recovery was what purports to be an account stated. This was a paper in form of an account, whereon the defendant had indorsed "Correct" and affixed his name, with the date of so doing. This paper recites that the sum due was for services in "suits of Billing v. You." There were, as plaintiffs contend, many other services rendered by them for defendant. The defendant's theory was that all of the services for which compensation was sought in this action were embraced in a certain contract he alleges was entered into between himself, on the one side, and plaintiffs and attorneys, Winter and McDonald, on the other, and that he had satisfied by payment the stipulation for compensation in that contract. The plaintiffs introduced testimony tending to show what services were not comprehended in the term "in suits of Billing v. You." The defendant, in his turn undertook to adduce testimony tending to show what was comprehended in the quoted term; but his efforts in this direction were thwarted by the court's ruling, invited, of course, by plaintiffs' objections, that defendant could not thus, by parol, alter, vary, or contradict the writing mentioned. Not only was it erroneous to so conclude the defendant, in view of the testimony admitted for the plaintiffs in explanation of what services were not comprehended in the term quoted, because such a process was the denial to defendant of what had been previously granted to the plaintiffs (Wefel v. Stillman, 151 Ala. 249, 44 So. 203); but the direct effect of the ruling of the court was to deny application of the general and familiar rule that, with a few exceptions not now necessary to state, the consideration for a promise or obligation may be inquired into, and what, in fact, the consideration was may be shown by parol. The consideration for the obligation spoken by the writing was services "in suits of Billing v. You," and no possible reason occurs to us, and none has been presented, why the defendant should not have been allowed, independent of the pertinent testimony already introduced by the plaintiffs, to prove what services were within and what without the category of the services described in the writing. Furthermore, with a large list of...