Rowele v. Ross

• Decision Date: 02 March 1915
• Citation: 93 A. 236,89 Conn. 201
• Court: Connecticut Supreme Court
• Parties: ROWELE v. ROSS et al.

93 A. 236

89 Conn. 201

ROWELE

v. ROSS et al.

Supreme Court of Errors of Connecticut.

March 2, 1915.

Appeal from Superior Court, Fairfield County; Joseph P. Tuttle, Judge.

Action by George P. Rowell against P. Sanford Ross and another. Judgment for the plaintiff, and defendant Ross appeals. Reversed, and new trial ordered.

Israel J. Cohn, of Bridgeport, for appellant. John C. Chamberlain, of Bridgeport, for appellee.

THAYER, J. This case was before us upon the plaintiff's appeal at the April term, 1913, when a new trial was ordered. 87 Conn. 157, 87 Atl. 355. After the case had thus been remanded to the superior court, the pleadings were changed by the filing of separate answers by the defendants, and new issues were thus created by the pleadings. It is unnecessary to state the facts fully, as reference to the report of the case when formerly before us obviates the necessity of stating here more than the changed condition of the pleadings. The plaintiff sues both defendants for his services in collecting a judgment held by the defendant Ross against one Holly. The defendant Hance is an attorney practicing in New Jersey and New York. Ross, by his substituted answer, admits paragraphs of the complaint, alleging that Hance is an attorney, and that he was employed by Ross to collect the judgment, but alleges that he was employed by him to collect it upon a 10 per cent. contingent basis. The allegation that the plaintiff's services were worth $2,500 is not denied. The defendant Hance admits by his answer that he employed the plaintiff to perform the services sued for, but alleges that the employment was upon the "usual collection basis," and that, in accordance with this, the plaintiff's fees for his services would amount to $400, which he has refused to accept. Neither party pleads tender as by their former joint answer. The plaintiff replied to these allegations of the answer by a denial and had a judgment for the amount claimed by him.

Upon the trial the defendants offered Hance as a witness to prove that, when he first saw Ross with reference to the collection of the judgment, he handed the latter a card and told him that the terms of collection were printed upon the back of the card, and that the terms on the card were 10 per cent. on the amount collected, and that Ross gave him the judgment to collect upon that basis. This tended directly to prove the allegation of Ross' defense that he gave Hance the judgment to collect on those terms, and was thus clearly admissible to support that allegation. It was also admissible in support of Hance's defense. He and the plaintiff were at issue as to whether Hance gave the plaintiff the judgment to collect on the usual collection basis, or whether he was to receive what his services in that behalf were reasonably worth. Each of the parties, in support of his claim, was entitled to prove the circumstances surrounding the employment. If Hance could satisfy the trier that the claim was placed in his hands for collection under an express agreement of the nature sought to be proved, it would be likely to raise a serious doubt in the latter's mind whether Hance would have placed it in the plaintiff's hands to collect on a basis which might lead to the result which has been reached, should this judgment stand, whereby Hance is held bound to pay the plaintiff more than 20 per cent. on the amount collected through his efforts. He may have been so improvident. The fact offered to be proved was not necessarily conclusive that he did not carelessly make an improvident contract with the plaintiff. But it was a relevant fact bearing upon the issue between them. What occurred at the time the evidence was excluded shows that the ruling was caused by a misapprehension of the bearing of our former decision upon the issues presented by the substituted pleadings. In the former trial evidence was received which satisfied the trial court that Hance undertook the collection of the claim on a 10 per cent. basis. To the claim that Ross could not be made liable in excess of the amount of his contract with Hance, we said the pleadings laid no foundation for the claim for the reasons there pointed out. Rowell v. Ross, 87 Conn. 157, 163, 87 Atl. 355. It is apparent that one of the purposes of the change in the pleadings was to lay the foundation for the introduction of this evidence.

The court finds that, after this evidence had been excluded, the deposition of Hance, which was taken by the plaintiff prior to the trial, was admitted in evidence, without objection by the defendants, and that in this deposition Hance testified fully as to his claimed agreement that he received and accepted the judgment against Holly from Ross upon a contingent basis of 10 per cent., and it is claimed that this heals the error in excluding his evidence when offered in court by the defendants. The court also finds from the depositions of Hance and Ross, the defendants, that no such arrangement (that is, for a contingent fee of 10 per cent. on the amount collected) was ever made between them. The claim is that the rejection of Hance's testimony was harmless, because these findings show that the same testimony which was excluded was afterward received and effect given to it. We think that the error was not healed by receiving on the plaintiff's rebuttal the depositions, taken by the plaintiff, of the two defendants. The effect of excluding the evidence upon the ground given substantially took away the entire defense of the defendant Ross. He had alleged a special agreement between himself and Hance with respect to the collection of the judgment. If such an agreement was made, it is clear that Hance had no authority under it to make such an arrangement as the plaintiff claimed, which would be binding upon Ross. When evidence was offered by Ross to prove the agreement which he had alleged, the evidence was excluded upon the ground that, if it was proved, it would have no bearing upon the case. This was excluding the evidence offered upon the ground that the defense offered to be proved was no defense. This forbade the offering of further evidence to prove that defense. The court finds that Ross did not personally testify in court, and that the plaintiff, in rebuttal, laid in his deposition taken by the plaintiff. It cannot be said, therefore, that the exclusion of the evidence was harmless. It would have been useless to offer further witnesses, had there been 20 to the making of the agreement, to prove this branch of Ross' defense. The same ruling must have excluded their testimony. It is possible that there was other testimony as to the agreement, and the fact that the court, from the depositions of Ross and Hance, has found that no such agreement as Ross sets up in defense was ever made, does not cure the error. The defendants had the right to give their testimony in open court under the guidance of their own counsel, and to have the court observe them as they testified and weigh the testimony as it was given in. It may be presumed that the plaintiff, in taking the depositions, was not seeking to prove the matters of defense, and that he conducted the examination with a view to help his own side of the case rather than to establish the defendants.'

It appears in a portion of Ross' deposition which is before us, in the motion to correct the finding, that Ross at the taking of his deposition refused, on advice of counsel, to state the terms of the agreement between himself and Hance upon the ground that what took place between himself and his counsel was privileged. However ill-advised this may have been, the circumstance shows that the deposition could not have been a great aid to the court in finding what the terms of the agreement were or were not. It shows, too, that the ruling complained of was probably harmful. The court, having in effect ruled that the agreement between Ross and Hance had no bearing on the determination of the case, should not have made a finding as to whether such an agreement was ever made by them. If it was to find upon that subject, it was clearly the duty of the court, if it had changed its views as to the bearing of the agreement upon the case, to have permitted the defendants to offer evidence in court to prove the agreement. It cannot be said, upon the facts before us, that the error in excluding this evidence was not harmful to the defendants.

The deposition of the defendant Ross, taken by the plaintiff, was received in evidence against the objection of the defendants that it was not taken pursuant to section 686 of the General Statutes. Section 686 provides for the issuance of a commission by the higher courts or, when they are not in session, by the judges thereof, to take the deposition of persons resident out of this state, and the claim is that the defendant Ross being a resident of New Jersey, and his deposition being taken there, could only be taken by some person commissioned to do so by the superior court or a judge thereof. This method was not, but might have been, pursued. It is not the exclusive method for taking the deposition of a nonresident witness. General Statutes, § 679, provides that the deposition of such a witness may be taken in any other state by a notary public, commissioner appointed by the Governor of this state, or any magistrate having power to administer oaths; reasonable notice having first been given to the adverse party or his attorney of the time and place of taking the deposition. This method was pursued by the plaintiff in taking the deposition in question, and was justified by the section...