Terrance Mckane v. M. M. Gordon And Richard A. Hoar
| Decision Date | 13 November 1911 |
| Citation | 81 A. 637,85 Vt. 253 |
| Parties | TERRANCE MCKANE v. M. M. GORDON AND RICHARD A. HOAR |
| Court | Vermont Supreme Court |
May Term, 1911.
GENERAL ASSUMPSIT. Heard on the pleadings and report of a referee, and defendants' several exceptions thereto, at the September Term, 1910, Washington County, Hall, J presiding. Exceptions overruled, and judgment for plaintiff. All parties excepted. The opinion states the case. See 77 Vt 7, and 79 Vt. 13.
William N. Theriault and Fred L. Laird for the plaintiff.
Richard A. Hoar, R. M. Harvey and M. M. Gordon for the defendants.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
The action is general assumpsit. Each defendant pleaded the general issue, and defendant Gordon also pleaded book-account in offset. The case was tried before one styled a referee and auditor, whose report was accepted and judgment rendered thereon for the plaintiff. The case was argued before us on a bill of exceptions in behalf of the plaintiff, and bills in behalf of each defendant.
It is stated in the plaintiff's bill that no exceptions were taken in his behalf before the auditor, nor to the report. That none were filed in the court below, nor any claim made in respect thereto until the rendition of the judgment. In these circumstances, so far as the rulings of the referee are concerned, nothing is presented for review except such questions as are expressly submitted by the referee in his report. By P. S. 1794 it is provided that no exceptions to the report of a referee or questions as to the admissibility of evidence shall be considered in this Court unless they are stated in the exceptions to the report filed in the court below. This statute is merely declaratory of the rule of practice as it had previously existed in this jurisdiction. Thus in Graham v. Stiles, 38 Vt. 578, a case decided long before the enactment of the statute, it was held that if one would avail himself of an error of a referee in admitting evidence, he should file exceptions to the report based on such error. And in Walton v. Walton's Estate, 63 Vt. 513, 22 A. 617, and again in Manning v. Leighton, 66 Vt. 56, 28 A. 630, upon a citation of our own cases, and without reference or allusion to the statute, which had then been in force some years, it was held that this Court would not review the rulings of a referee unless some question was submitted by him or exceptions to the report were filed in the county court. The rule is the same when a trial is had before a commissioner, Wilder v. Stanley, 49 Vt. 105, or an auditor, Perry v. Whitney, 30 Vt. 390, Dexter's Admr. v. Dexter, 37 Vt. 641, Hard v. Burton, 62 Vt. 314, 20 A. 269. This rule, it is to be observed, does not preclude a consideration of such questions as the referee submits in the report, Hogan v. Sullivan, 79 Vt. 36, 64 A. 234, of which there are several here presented which will be disposed of when reached.
The facts found by the referee show that this plaintiff brought a suit against certain parties for the recovery of damages on account of injuries received while in their employ. He engaged the defendants to bring and conduct that suit, but this was by contracts with them severally and not jointly. They continued to act as attorneys for the plaintiff in that litigation until final judgment was rendered therein. On June 2, 1906, the defendants in that suit drew their check for $ 3,623.26, the amount of the judgment and costs, to the order of M. M. Gordon and Richard A. Hoar, these defendants, and delivered the same to the defendant Gordon, who endorsed the check and delivered it to the defendant Hoar, who also endorsed it. The check was then delivered to a Miss Price, defendant Hoar's stenographer, who for some unexplained reason endorsed it, and took it to the bank and obtained the currency on it. This currency she turned over to Gordon and took his receipt for it. Thereupon, Gordon paid her for Hoar the sum of $ 1,400.,--the same being the amount of Hoar's account for services and disbursements less a discount of $ 89.50. From the amount thus left in Gordon's hands, he paid certain bills connected with the litigation, reserved a sum sufficient to cover a pending trustee suit, and sent the plaintiff a certified check for $ 107.55, therein stating that it was "in full to date." The plaintiff has never cashed this check, nor has he ever accepted the same, either in settlement or part payment of this claim.
The plaintiff filed a specification as follows: "In the above entitled cause, the plaintiff specifies as the claim upon which he will rely in the trial of the same the following:
June 2.
To cash received from Marr and Gordon,
of Barre, Vt., for me in settlement of my
judgment against them obtained in
Washington County Court, and affirmed by the
Supreme Court
$ 3,623.25
Less commission of 20% on judgment of
$ 3,450.00, as per agreement
690.00
This specification was neither withdrawn nor amended during the trial.
The defendants insist that, since the plaintiff failed to establish his claim that Gordon agreed to take the case on a contingent fee of 20% of the recovery, the plaintiff is out of court, and that he cannot recover on any other contract or theory than the one covered by his specification,--invoking the rule applied in Aseltine v. Perry, 75 Vt. 208, 54 A. 190, that a specification circumscribes the scope of the evidence and the plaintiff's right of recovery. But this claim is based upon a misconception of the ground of recovery set up in the specification. The basis of the suit as made by the specification is the money had and received by the defendants for the plaintiff's use,--$ 3,623.25. Against this sum, the plaintiff admitted a credit amounting to $ 690 on the basis of 20% of the judgment. Though the plaintiff failed to establish this basis of the credit allowed he was not thereby precluded from recovering so much of the sum paid to the defendants as they wrongfully withheld. It is as if a plaintiff allowed as a credit on the amount claimed a specified sum for a horse received of the defendant, and it turned out in evidence that the sum named was incorrect or the property received was something else. In such case a recovery could be had without amendment of the specification. In Greenwood v Smith, 45 Vt. 37, it was held that a plaintiff is not precluded by his specification from recovery upon a cause of action not included therein, but covered by the declaration, and proper for specification if it grew out of the subject matter of the specification actually filed, and the defendant admits such cause of action on trial. And in Bates & Son v. Quinn, 56 Vt. 49, an action of general assumpsit to recover money overpaid on settlement, it was held that the plaintiff might recover money belonging to him held by the defendant, though he failed to establish the special ground upon which he claimed to show the overpayment.
So it became the duty of the referee to investigate and pass upon the defendants' accounts. Having done so, the referee reports that Gordon overcharged the plaintiff $ 310., and that Hoar overcharged him $ 165. These overcharges were made in connection with the preparation and argument of the case in Supreme Court. In reaching his conclusions regarding this, the referee examined the briefs prepared to determine the propriety of the charges in connection therewith. The defendants say that this was improper, and that it was his duty to find according to the undisputed testimony of the witnesses, who said that the time charged for was actually spent, and the per diem charges reasonable. But we think the referee did just right in dealing with the matter as he did. The briefs themselves would afford some evidence of the time spent and of the time which ought to have been spent in their preparation, having regard for the interests of the client being served. There is a plain intimation of the propriety of such action in the last point disposed of in Carpenter v. Gibson, 82 Vt. 336, 73 A. 1030.
As we have seen, Hoar discounted his bill $ 89.50. The referee submits to the court the question whether that sum should be deducted from the overcharge of $ 165. In rendering judgment below, the court allowed this sum to Hoar, thereby reducing the overcharge to $ 75.50. The plaintiff says this was error, but we think it was correct. This allowance was but a voluntary credit, in effect conditioned upon the acceptance of the settlement as a whole. If the plaintiff chose to contest this defendant's bill, he opened the whole question, and Hoar was at liberty to insist upon payment of the amount discounted. It is like the situation presented in Hard v. Burton, 62 Vt. 314, 20 A. 269, wherein it was held that the plaintiff was not precluded from recovering what his...
To continue reading
Request your trial