Simms v. Floyd

• Decision Date: 30 September 1880
• Parties: Simms, executor. v. Floyd.
• Court: Georgia Supreme Court

65 Ga. 719

Simms, executor. v. Floyd.

Supreme Court of the State of Georgia

(September Term, 1880.

Practice in the Superior Court. Attorney and client. Contracts. Practice in the Supreme Court. Before Judge Speer. Newton Superior Court. March Term, 1880.

Floyd brought an action of complaint in Newton superior court against Simms, executor of John Harris et al., upon an account for "professional services rendered in defence of, and resistance to, an execution issued by the comptroller general of the state of Georgia v. Isaac P. Harris, as treasurer of the Western & Atlantic railroad, and his securities (of whom John Harris was one), for the sum of $28,933.24, with interest on that sum, at twenty per cent, per annum, from January 1st, 1871, and reduced by the said services of said Floyd, to the sum of $4,000.00 in four payments, at seven percent, per annum, from January 1st, 1876."

Defendant Simms, executor, pleaded the general issue, and payment to plaintiff by his testator of $350.00 for, and in behalf of, his son Isaac P. Harris, on account of the alleged services of plaintiff.

The jury found for the plaintiff. Defendant Simms, executor, moved for a new trial which was refused, and he excepted. For the other facts see the decision.

*Clark & Pace, for plaintiff in error.

J. J. Floyd; H. D. McDaniel, for defendant.

CRAWFORD, Justice.

Floyd, the defendant in error, recovered a judgment against Simms, executor of John Harris, for $2,150.00 for professional services rendered the deceased, with which the said executor was dissatisfied, and moved for a new trial because of the alleged errors committed on the said trial. Although there are several complained of, we consider and rule only upon those which control the case. These are—

(l.) That the judge erred in refusing to charge, as requested by defendant's counsel—that if I. P. Harris first employed the plaintiff, and afterwards John Harris employed him, then that John Harris' liability only commenced at the said subsequentemployment, and by saying in the presence and hearing of the jury that there was no evidence to authorize such a charge.

(2.) That where an attorney represented a party in court with his knowledge, and he does not object thereto, the presumption of law is that such service was rendered with his consent, and under an implied contract, for which the attorney would be entitled to recover what those services were reasonably worth. But if there were more than one defendant, and it appears that only one employed the attorney, and he looked to his employer alone for compensation, then the attorney could not recover from the others, although they got the benefit of such service. But if he were employed by one, and the others had knowledge that he was representing the whole case, and said services were also for their benefit, and accepted by them, then to avoid liability for said services, it was their duty to have notified the attorney that they would not be liable, otherwise they would be liable. *(3.) Because the court again and again repeated the charge favorable to the plaintiff, and did not do so with that portion favorable to the defendant.

1. Upon the first ground of complaint herein set out, we think that it was error to have refused to charge as requested, because there was some testimony going to show that the plaintiff had been at first employed by I. P. Harris, and afterwards that he had been employed by John Harris. It is wholly immaterial whether the same might or might not have been believed by the jury, the defendant had the right to have that theory submitted to them for their considtration and finding. If they should have believed that the defendant did not represent the defendant from the beginning, then they would have found him liable only from the time of his employment.

Besides, we think that the remark of the judge in the hearing of...