Walbridge v. Barrett

• Decision Date: 01 November 1898
• Citation: 76 N.W. 973,118 Mich. 433
• Court: Michigan Supreme Court
• Parties: WALBRIDGE ET AL. v. BARRETT.

76 N.W. 973

118 Mich. 433

WALBRIDGE ET AL. v. BARRETT.

Supreme Court of Michigan

November 1, 1898

Error to superior court of Grand Rapids; Edwin A. Burlingame Judge.

Action by Edward L. Walbridge and another against Ervin E. Barrett. From a judgment for plaintiffs, defendant appeals. Reversed.

Bundy & Travis, for appellant.

J Byron Judkins (Henry E. Walbridge, of counsel), for appellees.

GRANT C.J.

Plaintiffs are attorneys, bringing suit to recover for their services rendered for defendant in and about a suit brought by him against the Grand Rapids Veneer Works. Defendant was defeated in that suit in the circuit court, appealed it to this court and obtained a reversal. 110 Mich. 6, 67 N.W. 976. The case was again tried in the circuit, resulting in a verdict and judgment for plaintiff for $6,198.50, and costs, taxed at $646. Defendant disputed plaintiffs' claim, and this suit followed. Plaintiffs obtained a verdict and judgment for $1,130.50. The testimony, so far as is material, will be stated in connection with the points determined.

1. Defendant requested the court to direct a verdict for him, on the ground that the action was prematurely brought. This request was based upon the contract for services as stated by plaintiffs,-that they were to receive no pay for their services until a judgment was obtained and the case settled. A settlement of the case was made on May 17, 1897, and a check of the veneer company for the amount given to its attorneys, to be paid to Mr. Barrett. Meanwhile the dispute arose over the amount of plaintiffs claim for services. Plaintiffs had employed other attorneys, and were endeavoring to obtain the money. Under these circumstances the request was properly refused.

2. There was evidence tending to show that plaintiffs refused to take the case upon commission, but agreed to charge nothing unless they obtained a judgment, and, if they obtained a judgment, were to receive what their services were worth. Several witnesses were asked to state what would be a reasonable charge for plaintiffs' services rendered "with the express understanding that, unless they finally recovered judgment in the case, they were to get nothing." This testimony was incompetent. They agreed to charge what their services were worth. They were worth no more and no less because of the agreement to charge nothing unless they were successful. A carpenter or plumber or machinist who agrees to do a certain piece of work upon the agreement that, if he does not accomplish the purpose in view, he shall receive nothing, but, if he does, he is to receive what his services are worth, can recover no more than their actual worth. The value of his services is not enhanced or lessened by the contingency. An agreement made by a lawyer stands upon no different basis.

3. The case of Barrett against the veneering company was tried before Judge Adsit. Plaintiff Walbridge was permitted to testify that he told Barrett that Judge Adsit had told Mr. McAllister that plaintiffs ought to have half of the judgment as a compensation. The sole ground upon which plaintiffs defend the competency of this evidence is that they had a right to show what inducement and influence they had used with defendant to bring about an adjustment without litigation. We cannot concur in this view. It was immaterial what efforts had been made to adjust their differences. The attempt had failed, and the sole questions were, what was the agreement, and how much were their services worth. The opinion of the judge who tried the case, though hearsay, might have great influence with the jury.

4. On cross-examination defendant testified that the balance due the plaintiffs was about $350. He was asked if he had not claimed it to be $536. He replied that he had not, and denied that he had ever tendered "that amount in court." Plaintiffs' counsel then handed him a written offer of judgment filed in the case, made under 2 How. Ann. St. � 7372, which provides: "If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence," and asked if he ever made them an offer of $526. After objection and exception the witness...