Robinson v. Hawes
| Decision Date | 28 January 1885 |
| Court | Michigan Supreme Court |
| Parties | ROBINSON v. HAWES. |
Error to Wayne.
Griffin & Warner, for plaintiff.
Chas H. Freeman, for appellee.
This is a controversy between attorney and client. In 1876 Robinson employed Hawes to perform legal services for him, at a stipulated price per day and disbursements and expenses. Under this arrangement defendant attended to a large amount of litigation in which plaintiff was directly and indirectly interested, when in August, 1883, he received into his hands as attorney for plaintiff, the sum of $5,922.25, being the avails of a suit compromised and settled by the parties, and refused to pay over to the plaintiff the sum so received, but offered and did pay over $3,722.25, retaining $2,200, which he claimed he had a right to retain and apply on his charges for services in that and another suit, called the Sanborn suit. He afterwards made out and presented a bill for professional services, which he claimed he had performed for defendant, amounting in the aggregate $6,174.37, in part payment of which he claimed he had applied the $2,200, leaving a balance claimed to be still due him of $3,974.37. Plaintiff demanded the whole amount of $5,922.25 and also the said sum of $2,200, and, on defendant's refusal to pay over, he brought this action. The suit is commenced by capias ad respondendum, upon which defendant was arrested and held to bail in the sum of $5,000. The declaration contains three counts. The first alleges that defendant was a practicing attorney, and had been employed by the plaintiff in his professional capacity, and as such attorney, and by virtue of such professional employment, he received for and on behalf of the plaintiff $5,922.25, which sum it thereupon became the duty of defendant to pay over to plaintiff; that, although often requested so to do, defendant had not paid to plaintiff the said sum of money, or any part thereof, but has wrongfully and unjustly neglected and refused, and still neglects and refuses, and has converted and appropriated the same to his own use.
The second count is the same as the first, except that it alleges it to be the duty of defendant to pay the sum to plaintiff on demand, and that afterwards, and on the fifteenth day of August, 1883, the plaintiff demanded of defendant the said sum of money, and that defendant refused compliance. The third count is in trover for converting $5,922.25. The plea was the general issue. On the trial the plaintiff produced himself as a witness, and counsel for plaintiff offered to prove by him the facts and circumstances set forth in the affidavit for the writ of capias, and he did not propose to show any other facts and circumstances in support of plaintiff's case. Defendant's counsel then objected to the evidence proposed to be given by said offer, as immaterial, and not sufficient to make out a cause of action against defendant under the declaration. The court sustained the objection, to which ruling the plaintiff excepted, and the court then directed the jury to render a verdict for the defendant, which was done. The shape in which the case was finally disposed of was the same as if the witness had been produced upon the witness stand, and had testified to the facts and circumstances detailed in the affidavit, and the defendant had thereupon demurred to the evidence, and the court was called upon to decide, as matter of law, whether from the evidence sufficient facts appeared to warrant the jury in finding a verdict for the plaintiff. It was proper for the court to consider the facts and circumstances stated in the affidavit, and also to draw...
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