Scott v. Morse

• Citation: 6 N.W. 68,54 Iowa 732
• Parties: SCOTT v. MORSE AND ANOTHER.
• Decision Date: 12 June 1880
• Court: United States State Supreme Court of Iowa

54 Iowa 732

6 N.W. 68

SCOTT

v.MORSE AND ANOTHER.

Supreme Court of Iowa.

Filed June 12, 1880.

Appeal from Pottawattamie district court.

The petition of plaintiff alleges in substance that in the forepart of the year 1878, as a member of the firm of Montgomery & Scott, attorneys at law, the plaintiff, at the request of defendants, rendered professional services to them about the preparation of a petition for rehearing in a case entitled Crouse v. Morse, pending in the supreme court, which services were worth $300; that afterwards, on the fourteenth day of April, 1878, the firm of Montgomery & Scott was dissolved, and the said claim was assigned to plaintiff and became his property. The plaintiff demands judgment for $300 and interest. The defendants filed an answer denying all the allegations of the petition. The cause was tried to a jury and a verdict was returned for the plaintiff for $134.37. The motion for a new trial was overruled, and judgment was entered upon the verdict. The defendants appeal.Sapp, Lyman & Ament, for appellants.

Scott & Hight, for appellee.

DAY, J.

It is claimed by the defendants that B. F. Montgomery, a member of the firm of Montgomery & Scott, agreed that his firm should render for defendants the services in question without charge; and it is insisted that there is no contradiction of the testimony of Montgomery that he agreed on behalf of his firm that the services should be rendered without compensation. It is claimed that upon this branch of the case the verdict is opposed to the uncontradicted testimony, and therefore is not supported by the evidence. The only pleading interposed by the defendants is a general denial of all the allegations of the petition. This denial simply puts in issue the fact of the rendition of the services, their value, and that the claim therefor has been assigned to the plaintiff. If the defendants intended to rely upon the fact that there was an agreement that the services in question should be rendered without compensation, such defence should have been specially pleaded. “Any defence which admits the facts of the adverse pleading, but by some other matter seeks to avoid their legal effect, must be specially pleaded.” Code, § 2718.

The case falls fully within the principle of Parker v. Hendrie, 3 Iowa, 263. In that case, as in this, evidence was introduced and instructions were given on an issue not tendered by the pleadings. A verdict was returned for the plaintiff, which the...