Slade v. Harris

• Decision Date: 11 January 1927
• Court: Connecticut Supreme Court
• Parties: SLADE v. HARRIS.

135 A. 570

105 Conn. 436

SLADE v. HARRIS.

Supreme Court of Errors of Connecticut.

January 11, 1927

Appeal from Superior Court, New Haven County; John R. Booth, Judge.

Action by Benjamin Slade against Sol Harris to recover compensation for services as an attorney. Judgment for plaintiff for $8,750 and interest, and defendant appeals. No error.

One Adolph Mendel had been for a long time a partner in Mendel and Freedman, conducting a department store in New Haven and later was a large stockholder in Mendel's, Incorporated a corporation which succeeded the partnership. In 1922, the defendant, Harris, who had been a manufacturer of ladies' garments in New York, purchased one-half of the common stock of the corporation, and its name was later changed to Mendel & Harris, Incorporated. In 1923, relations between Mendel and Harris became strained because of differences as to the management of the business. Early in 1924 this condition had become so acute that, apparently, they could not continue in business together, and in February the defendant employed the plaintiff to act as local attorney for him in matters concerning the interest of the defendant in the corporation and the conduct of its business. Then followed extended conferences and negotiations looking toward an adjustment and separation between Mendel and Harris by the purchase by one of the interest of the other, until finally an option agreement was executed which gave the defendant the right to purchase Mendel's holdings in the corporation for $300,000, which sum the defendant obtained, in part by a loan of $150,000 from a New Haven bank, and he exercised the option and completed the transfer. There appears to have been no controversy as to the facts above stated, so far as the record discloses.

The plaintiff's bill of particulars detailed professional services rendered by him to the defendant from February to May 26, 1924, relating to these negotiations and transactions and collateral and subsequent matters, including negotiations with different parties concerning the securing of the $150,000 loan, and claimed $10,000 as compensation therefor. The defendant alleged in his answer, in substance, that the plaintiff failed to incorporate in the contract with Mendel a provision that he should not re-enter the same line of business, so as to prevent him from competing with the corporation; that Mendel became president of a competing corporation and actively participated in its business; that the business and good will of Mendel & Harris, Incorporated was thereby injured and a large loss incurred; and that, by reason of negligence of the plaintiff in failing to properly protect the defendant in this respect, the plaintiff's services were rendered worthless to the defendant.

Charles S. Hamilton, of New Haven, for appellant.

Philip Pond and Daniel D. Morgan, both of New Haven, for appellee.

HINMAN, J. (after stating the facts as above).

Error is predicated upon the refusals of the trial court to charge in accordance with several requests, certain portions of the charge as given, numerous rulings on evidence, and the denial of a motion to set aside the verdict on the ground that remarks made by plaintiff's counsel in argument were prejudicial to the defendant.

Many of the assignments of error based upon refusal to charge as requested are disposed of by application of the often reiterated principle that the trial judge is not bound to adopt and use the language of requests to charge, but that it is enough if the instructions upon the points involved are correct and adequate. Rohde v. Nock, 101 Conn. 439, 442, 126 A. 335, and cases cited.

The defendant's first claim of error relates to the failure to charge, in the form and manner requested, with reference to the burden of proof. The court charged explicitly and correctly that the burden of proof was upon the plaintiff to establish by a fair preponderance of the evidence the substantial allegations of his complaint, among which were the rendition of the services alleged and their value. To have charged, instead and without more, as defendant requested, would have conveyed the impression that it was incumbent upon the plaintiff to prove, also, that his services were not unskillfully or negligently performed, to the detriment or destruction of their value, as the defendant claimed and alleged. The court charged with equal clearness and correctness that the burden of proving the substantial allegations of the special defense that the plaintiff's failure to properly advise the defendant and care for and protect his interest had caused him loss and rendered the services of the plaintiff worthless rested upon the defendant, not upon the plaintiff, in presenting his case in chief, to show that he possessed and used the requisite skill and care. An attorney, a physician, or a person of other profession which involves and implies a reasonable amount of technical skill, knowledge, and probity, is entitled to the benefit of a presumption that he has discharged his duty, whether legal or moral, until the contrary is shown. Styles v. Tyler, 64 Conn. 432, 464, 30 A. 165; Priest v. Dodsworth, 235 Ill. 613, 617, 85 N.E. 940, 14 Ann.Cas. 340; Pennington v. Yell, 11 Ark. 212, 52 Ann. Dec. 262. The existence of negligence, lack of requisite skill, or other ground of liability is a question of fact for the jury, and the extent and amount of damages therefor must be affirmatively shown by the party claiming them. Pennington v. Yell, supra.

Several assignments relating to requests to charge and the charge as given converge, through various angles of approach, upon one point--the claim of the defendant that the plaintiff was, in effect, an insurer of the completeness and success of the results of his services--specifically, that he was responsible to the defendant for the consequences and any loss accruing by reason of the lack of a provision in the contract between Mendel and Harris restricting the former from engaging in competitive business to the latter's detriment. This claim is most directly stated in the fourth request: " If there are contracts to be drawn or papers to be executed and he (the lawyer) fails to execute the papers properly, or fails to insert in the papers what is necessary for his client's protection, or fails to prepare the proper papers to protect his client's interests," the client may, in a suit against him for fees, defend on the ground that the services were thereby rendered worthless, and that the damage was greater than the fees of the lawyer would have been, " had he done the work correctly."

As to the duties and liabilities of an attorney in the situation of the plaintiff, the trial court charged as follows:

" There is an implied promise on the part of an attorney that he will execute the business intrusted to his professional management with a reasonable degree of care, skill, and despatch, because an attorney, in order to recover reasonable compensation due him, is under certain obligations to his client; he should render faithful service in all such matters as he undertakes; he should be vigilant and loyal to his client's interests; he should give his best skill and talent; he should be neither negligent nor indolent as to the matters he has in charge; he should be industrious, careful, and discreet in his professional work; and he should use his best honest effort and skill in the matter of his employment. If he fails in these respects he most assuredly fails in the discharge of his professional obligations to his client, and to the extent that he so fails in these respects he lessens his efficiency, lessens the value of his services, and lessens the benefits to his client; and his blunders, mistakes, and failures in these respects just alluded to, if any there be, may be so many and so great as to warrant a jury in finding that such services were of no value.

This rule, however, does not require that he is bound...