Simmons & Ward v. Davenport

• Decision Date: 27 February 1906
• Parties: SIMMONS & WARD v. DAVENPORT.
• Court: North Carolina Supreme Court

53 S.E. 225

140 N.C. 407

SIMMONS & WARD v. DAVENPORT.

Supreme Court of North Carolina

February 27, 1906

Appeal from Superior Court, Craven County; Webb, Judge.

Action by Simmons & Ward against B. B. Davenport. From a judgment for plaintiffs, defendant appeals. Affirmed.

Where a party is not satisfied with the charge as to the issues presented by the pleadings, he should ask for more specific instructions, else he cannot afterwards object.

Plaintiffs sued the defendant to recover an amount alleged to be due for professional services rendered by them at his request in collecting a debt held by him against an insolvent bank. Defendant denied that he was indebted to the plaintiffs. There was evidence tending to show that plaintiffs had rendered the services at the request of the defendant, and that the latter had received the benefit of them and had refused to pay what they were reasonably worth, and there was some evidence, on the part of defendant, tending to show that, while the plaintiffs were the attorneys of the other creditors of the bank, they had not been retained by the defendant. There was also evidence that defendant had frequently consulted with one of the plaintiffs about the collection of his claim, going to his office for that purpose, where defendant was seen in consultation with him. A clerk of the plaintiffs copied a release which defendant was to give to Mr. Blades, trustee of the bank, and about which he had received advice from the plaintiffs. There was much other evidence to sustain the plaintiffs' contention that they had been employed by defendant and rendered the services with the understanding that they should be compensated for them. In the view we take of the case, it is not necessary to set out the evidence more in detail. The following are the issues, with the answers thereto: "(1) Did the defendant employ Simmons & Ward as attorneys in the matter in dispute? Yes. (2) Did plaintiffs render for defendant the services alleged to have been performed? Yes. (3) Did defendant knowingly accept the benefit of such services? Yes. (4) What was the value of plaintiffs' services? Seventy-five dollars." The only exceptions taken were to the charge. The court instructed the jury, in substance, that the burden upon all the issues was upon the plaintiffs, and that they must satisfy the jury by a preponderance of the evidence as to them. The court then referred to each issue separately and gave the same instruction as to the first and also as to the second issue which it had given as to all of the issues and stated, further, that if the plaintiff had satisfied them by the greater weight of the evidence that defendant had employed the plaintiffs to represent him, and consulted with them, they should answer the first issue "Yes," but if they were not so satisfied they should answer it "No"; and the same was said, with the necessary changes, as to the second issue. The court merely read the third issue to the jury, without making any separate comment thereon, or giving any instruction in regard to it, other than contained in the general charge upon all the issues. Upon the fourth issue the court charged that it was for the jury to say how much, if anything, the plaintiffs are entitled to recover, and whether the amount stated by the witnesses was a reasonable compensation for the services rendered; that the jury must consider the evidence upon this question, and say what amount the plaintiffs should receive for their services. The defendant excepted to the instructions upon the first, second, third, and fourth issues. There was a judgment upon the verdict, and defendant appealed.

W. D McIver, for appellant.

O. H Guion and E. M. Green, for appellees.

WALKER J. (after stating the case).

We do not see upon what ground the defendant can complain of the instructions of the court. If the plaintiffs were employed by the defendant as attorneys to represent him and take care of his interests, and they rendered services to him under the contract, they were entitled to recover what their services were reasonably worth, there being no stipulation as to the amount the plaintiffs were to receive, and it can make no difference, in this view of the case, whether the third issue was answered or not, there being enough left, if that issue had not been answered, to support the judgment. Sprinkle v. Wellborn (at last term) 52 S.E. 666. But we think the jury must have understood the court to charge as to the third issue that the burden was on the plaintiffs to satisfy them, by the greater weight of the evidence, that the defendant had accepted the benefit of plaintiffs' services. Besides, there was no serious controversy as to the fact that the defendant had been benefited by what plaintiffs had done. As to the first and second issues, the charge was correct as to the burden of proof and sufficient in other respects to inform the jury as to the quantum of proof required of the plaintiffs to establish the affirmative of those issues, and it was also correct as to the fourth issue. The evidence was so simple that the jury could hardly have been misled by the charge as to the true inquiry involved in each issue. The defendant did not ask for any special...