Sheehy v. Duffy

• Decision Date: 11 December 1894
• Citation: 61 N.W. 295,89 Wis. 6
• Parties: SHEEHY v. DUFFY ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 6

61 N.W. 295

SHEEHY

v.DUFFY ET AL.

Supreme Court of Wisconsin.

Dec. 11, 1894.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Action by Mary Sheehy against F. F. Duffy and another for money had and received for plaintiff's use. Judgment was rendered for defendants, and plaintiff appeals. Reversed.

The plaintiff entered into a contract with the defendants, who were copartners as attorneys, by which they were to prosecute her claim and agreement assigned to her by one Colton against St. Patrick's Congregation of Fond du Lac, and she agreed to pay them in full for such services $150 in case of recovery, but, if they did not recover the amount claimed to be due, or some part of it, they were not to charge or receive anything for their services from that date; their previous services having been adjusted at $100. They were to “commence suit against the members of said congregation, and * * * to contract or otherwise obtain the lowest charge for services and other necessary disbursements and expenses to be furnished” by the plaintiff, “and to litigate said claim (unless paid without) as far as the same can be carried.” The plaintiff alleged that the defendants brought suit accordingly, and recovered and collected therein the sum of $3,117.58; that they paid her only $1,142.15; that, after deducting the amount due them under the contract, there remained due from them to the plaintiff $1,725.43, with interest, for the recovery of which she brought this action. The defendant Duffy answered, in substance, that immediately after making the agreement it was discovered that the congregation of St. Patrick's Church was an unincorporated association; that he was a member of it, and that the action would have to be brought against the individual members, and he would therefore be a necessary party to the action, of all of which the plaintiff had notice, and that for this reason the agreement was canceled; that the plaintiff canceled and abandoned the said contract, and never performed or offered to perform it. He denied that the action was prosecuted or said money was collected by himself and McCrory, as her attorneys, but that it was conducted and the money collected by McCrory and the firm of Shepard & Shepard, as her attorneys. The defendant McCrory insisted in like manner that the contract had been canceled and abandoned; that the plaintiff never performed or offered to perform any part of it; that the action was brought and prosecuted by himself and Shepard & Shepard, as her attorneys, against the individual members of the congregation, his codefendant Duffy being a defendant with the others, all with the consent and approval of the plaintiff; that he and Shepard & Shepard collected the money recovered, and, after retaining a reasonable and just fee for their services and their actual and necessary expenses, there remained due her $1,142.15, which had been paid to her before suit. Upon trial before a jury the defendants objected to the reception of any evidence under the complaint, upon the ground that by the terms of the contract advancement of costs and expenses of litigation was a condition precedent to the collection of the money, and the complaint did not allege performance of that condition, or any excuse for nonperformance; but the motion was denied for the time being, and, after the plaintiff had rested, the defendants severally moved for a nonsuit, on substantially the same grounds, and also that the proof failed to show any cause of action in favor of the plaintiff against the defendants. The motion was denied. There was no dispute as to the amount of the expenses and disbursements of the defendants, and it was not disputed but that the charges for fees were reasonable in amount. The evidence was directed to the question whether the written contract had been canceled and rescinded or abandoned, and whether the services rendered by defendants were performed under that contract. The court submitted but one question to the jury, namely: “Did the defendants, as copartners, prosecute the action of Sheehy against Blake et al., and recover and collect the judgment under the written contract made June 9, 1886, between them and Mrs. Sheehy?” To this question the jury answered, “Yes.” The plaintiff, on the evidence and special verdict, moved for a judgment in her favor against the defendants for $1,106.43, damages and costs, etc. The defendants severally, upon the evidence on the minutes and upon the law applicable to the facts proven, moved the court to enter judgment in favor of the defendants non obstante veredicto on the undisputed evidence, on the ground that on account of the failure of the plaintiff to furnish the necessary disbursements and expenses in the prosecution of the action, whereby her attorneys were compelled to furnish them out of their own means or abandon the litigation, the defendants had the right to treat the contract of June 9, 1886, as abandoned and rescinded by the plaintiff; that she wholly failed to perform the condition precedent upon her part by the payment of said disbursements and expenses, and that they were therefore entitled to recover the moneys advanced and expended, and reasonable compensation for their services as attorneys as upon a quantum meruit, and they also moved for a new trial for similar and other reasons. The court, upon the hearing of these motions, ordered: “On the undisputed evidence in the case, that the verdict be amended and modified so as to be, and the court, on the undisputed evidence hereby finds, as follows, to wit: (1) That the defendants, as copartners, prosecuted the action of Sheehy against Blake under the contract of June 9, 1886, until the plaintiff failed to perform such contract on her part. (2) That during the progress of said action of Sheehy against Blake the plaintiff failed to perform such contract on her part, and thereupon said contract was rescinded and abandoned by the parties to it, and no new contract was expressly made in its place. (3) That the part of the recovery in said action of Sheehy against Blake not paid to the plaintiff is the reasonable value and amount of the services and disbursements of plaintiff's attorneys in prosecuting said action, and was retained by and paid said attorneys.” The court ordered judgment entered on said verdict as thus amended and modified in favor of the defendants, dismissing the action, with costs, from which the plaintiff appealed.F. W. Houghton and George Hilton, for appellant.

Duffy & McCrory and Geo. G. Greene, for respondents.

PINNEY, J. (after stating the facts).

1. The finding of the jury that the services of the defendants were rendered under the written contract consisted of a single point or proposition, and disposed of the substance of the issue in favor of the plaintiff, leaving it as a mere matter of computation upon undisputed facts to ascertain for what amount judgment should be given in her favor. With this verdict remaining in force, judgment could not have been given for the defendants. Judgment non obstante veredicto is given where the defendants' plea confesses the action, and does not sufficiently avoid it. 2 Tidd. Pr. 920. It will be given where the defendant obtains a verdict, and the defense put upon the record is not a legal defense to the action, in point of substance; but not unless the merits of the case are very clear. Grah. Pr. 647. But a defendant cannot move for judgment non obstante veredicto. Smith v. Smith, 4 Wend. 468;Schermerhorn v. Schermerhorn, 5 Wend. 513;Bellows v. Shannon, 2 Hill. 86.

2. The verdict of the jury is clearly supported by the evidence in the case as it was argued and submitted to the jury. The trial judge, in his reasons for giving judgment for the defendants, contained in the record, states, in substance, that the only defense set up in the answers was that the written contract was mutually abandoned by the parties, and a new contract made with Mr. McCrory; that this was fully litigated and passed upon by the jury, and “it cannot be questioned that the evidence warrants the finding that no new contract was made, and that the defendants proceeded at first under the contract of June 9, 1886, and employed Mr. Shepard to assist them”; that, although the question was presented whether this contract was not abandoned afterwards, and before the work was completed, yet no reference was made to this question in the lengthy argument to the jury, and, as no request was made for instructions on that point, none were given, though the point was raised by the motions for nonsuit and for a direction to the jury to find for the defendants. We do not understand, however, that the point was specifically stated, but that, under the motions, it was open to the defendants. Without setting aside the verdict, the court gave judgment for the defendants, on the ground that by the uncontradicted evidence they were entitled to it, having first made a finding amending the verdict as stated, to the effect that the contract was rescinded and abandoned by the parties, and no new one was expressly...