Wildey v. Crane
| Decision Date | 02 March 1888 |
| Citation | 69 Mich. 17,36 N.W. 734 |
| Court | Michigan Supreme Court |
| Parties | WILDEY v. CRANE. |
Appeal from circuit court, Van Buren county; ALFRED J. MILLS, Judge.
This action is brought to recover of the defendant $138.68, paid by the plaintiff to satisfy a judgment for costs recovered against him by the Farmers' Mutual Fire Insurance Company, of Van Buren county. Wildey brought an action against the company to recover for a loss sustained by him upon one of its policies, and failed to recover, and the costs sued for were then taxed up against him in such suit and in which the defendant was his attorney. The plaintiff now bases his action upon an alleged contract, which he claims to have made with the defendant, whereby it is claimed the defendant agreed to prosecute the plaintiff's suit against the company, and pay all costs incurred, and, if successful, give Mr. Wildey one-half of all collected, but if unsuccessful, then Crane was to pay all the costs, and have nothing for his services. Wildey recovered in the circuit, but failed to sustain his judgment on appeal to this court; and the costs taxed are those now sued for, Wildey having paid the same, and made demand therefor upon the defendant. The defendant denied making the contract claimed by the plaintiff, pleaded the general issue to plaintiff's declaration, and gave notice of set-off thereunder. On the trial at the circuit before a jury, the plaintiff recovered judgment, and defendant brings error.
The defendant insists that the contract plaintiff claims to have been with him being a verbal one, is within the statute of frauds; that an action will not lie upon it, for the reason that Wildey had no cause of action against the insurance company, and there was therefore no basis for such a contract as the plaintiff claims to have made with the defendant. We think this position is untenable. The contract, as the plaintiff states it, was based upon a venture in which both parties, in case of success, were to be beneficially interested. It was a right of action which might or might not be defeated, according to circumstances. That right had been prosecuted before this suit was brought, and the contract, therefore, became an executed one before this suit was commenced, if it ever existed. The plaintiff as he states his case has a cause of action against the defendant. The defendant emphatically denies the conversation in which the alleged contract was made, as the plaintiff states it, and says that, after several conversations with Mr. Wildey, he did agree for a contingent fee, and, at the earnest solicitation of the plaintiff, to prepare and present to the board of directors of the insurance company the claim of the plaintiff for allowance, and that in pursuance thereof he did present the same to said board, and that the same was disallowed, and that he performed no other services in the claim upon a contingent fee, and that, when the insurance board rejected said claim, the plaintiff directed the defendant to bring the suit against the company, which resulted in defeat. The defendant also made a claim of set-off against the plaintiff for services rendered in another matter entirely disconnected with the claim of the plaintiff, also for an item of service in the suit against the company, in securing a reduction of the costs presented for taxation, which service the defendant claimed he had a special contract with the plaintiff by which he was to be paid therefor. Upon the several claims of the two parties, and upon the theory of each, the cause was tried, with the result before stated. The defendant relies upon the exceptions he took upon the trial in the receiving and rejecting testimony, and to the charge of the court for a reversal.
We have examined the record with care, and note the following as subject to the exceptions taken:
Mr. Wildey, the plaintiff, testified, when upon the stand, that the defendant solicited him to allow the defendant to prosecute the suit against the insurance company, upon the terms claimed by the plaintiff, after the latter had given up trying to collect it. On this cross-examination the defendant asked the witness: The answer was ruled out as immaterial and incompetent. The witness should have been allowed to answer. The inference the jury would be likely to draw from the statement of the manner the defendant engaged in the service of the plaintiff was not favorable to the defendant, and any circumstances originating with the plaintiff, modifying or explanatory of the facts from which such inference arose, were proper cross-examination, and admissible. The answer should have been allowed.
After judgment was obtained for the plaintiff in the circuit against the insurance company, and the company announced its intention to remove the case to the supreme court, the defendant claims, and his testimony is to the effect, that he saw Mr. Wildey, and had an express understanding with him that, if he failed in the supreme court, the defendant was to have no fees for his services, but was not to be liable for any costs; that about that time the insurance company had a meeting at which the case was considered, and the terms upon which the defendant was prosecuting the suit were talked over, and until then there was no occasion to consider the question as to payment of costs by Mr. Wildey, as the judgment...
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