Williams v. La Penotiere

• Decision Date: 06 November 1893
• Citation: Williams v. La Penotiere, 32 Fla. 491, 14 So. 157 (Fla. 1893)
• Parties: WILLIAMS v. LA PENOTIERE.
• Court: Florida Supreme Court

14 So. 157

32 Fla. 491

WILLIAMS v. LA PENOTIERE.

Florida Supreme Court

November 6, 1893

Error to circuit court, Hillsborough county; G. A. Hanson, Judge.

Action in assumpsit by F. J. La Penotiere against John C. Williams. Plaintiff had judgment, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A bill of exceptions under our statute becomes a part of the record of a cause for the purposes of review in the appellate court; and where proper exceptions have been taken to the instructions of the court to the jury, and they appear in the bill of exceptions, error may be assigned upon them in this court on writ of error, although no motion for a new trial was made in the trial court.

2. Where the testimony submitted to the jury, and upon which a verdict may be based, is conflicting, it is clearly a violation of the statute, construed by many decisions in this state, for the court to instruct the jury to give more weight to one part or kind of the evidence than another. This is exclusively the province of the jury, and it must not be invaded by the court.

COUNSEL Phillips & Carter, for plaintiff in error.

C. W Stevens and Fred. T. Myers, for defendant in error.

OPINION

MABRY J.

Defendant in error, as plaintiff in the circuit court, sued plaintiff in error in assumpsit, the damages alleged being $1,867.44. The bill of particulars filed with the declaration consists of an account for professional services as an attorney rendered by the plaintiff for the defendant, and for money expended by plaintiff for defendant in connection with said services, aggregating the sum of $1,204.53, with credits of payments amounting to $270.81.

The items in this account are numerous, and are for writing deeds and contracts, examining titles and giving legal advice in connection with the same, and for fees for services rendered in certain lawsuits instituted by John R. Jones against plaintiff in error. There was a plea of the general issue set-off, and recoupment. The plea of recoupment is based upon alleged failure of defendant in error to skillfully and properly represent plaintiff in error in said litigation with Jones. A trial of the case resulted in a verdict in favor of plaintiff for $603.89, and judgment was entered for this sum and costs of suit.

An appeal was taken from this judgment, and dismissed in this court at the June term, A. D. 1889, because the transcript of the record was not filed within the time required by law, and no sufficient excuse was shown for not doing so. Williams v. La Penotiere, 25 Fla. 473, 6 So. 167.

Subsequently the case was brought here by writ of error, and an unsuccessful effort was made to dismiss this writ. Williams v. La Penotiere, 25 Fla. 333, 7 So. 869.

In the record, as originally exhibited to this court on appeal there was no bill of exceptions, and nothing upon which error could be predicated in the proceedings of the trial court.

Along with the record on writ of error, we have presented a bill of exceptions, and the case has been submitted on the record, including the bill of exceptions.

The only error assigned is upon a portion of the charge given by the court to the jury, and it is contended that in this portion of the charge the court invaded the province of the jury by charging upon the weight of the evidence.

The plaintiff testified for himself, in substance, that each item in the account for services rendered and money paid by him for the defendant was correct; that the services were rendered and money paid at defendant's request, and the services so rendered reasonably worth the amounts charged in the account, and remained unpaid; that he was, at the time of rendering said services, a practicing attorney at law, and was such at the time of trial. On cross-examination he admitted that defendant had paid two notes for him, but stated that credit had been given on the account for these payments; that he had been allowed at different times--how many he did not know, but quite often--to ride a horse belonging to defendant, and that he used the horse at defendant's request, and did not know that pay was expected for the same; that the amount of $450 (the sum claimed in defendant's plea of set-off) for the use of the horse was extravagant and out of reason. He also stated that he was an attorney at law, and did not think the charges in the account for services were unreasonable.

Plaintiff also introduced as witnesses four practicing attorneys, one of whom stated that for writing an ordinary deed a fee of $5 was not too much; that he was counsel for Jones in his suits against the defendant in both the state and federal courts, and that in the opinion of the witness the charges made by plaintiff in these suits were too much, and that $500 would be a reasonable fee in both cases; that they were one and the same case, the defendant having removed the case from the state court to the federal court. A trial in the federal court resulted in a verdict and judgment against defendant, but it was afterwards set aside on motion, and the plaintiff dismissed the case. Another one of the attorneys testified that he thought $5 was not too much for writing an ordinary deed or contract, and that in his opinion the charges made by plaintiff for services in the case of Jones against Williams were not reasonable, and that $500 for both courts would be reasonable. The other two witnesses testified, in substance, the same as the last one given. Several of the items in the account sued on are for drawing deeds and contracts, and the charges for some of them are $5, while for many others the charges are much more, some amounting to as much as $25. One item is for 'settling the Spurling matter, $120.00,' and another, 'effecting exchange of Peerless, and looking into title of land deeds and mortgages, $200.00.' The account shows a charge of $600 for retainers in the Jones suits in the state and federal courts, and fee for trial of suit in federal court and obtaining new trial. The credit on the account was $270.81.

The defendant testified that the account of $450 filed with his plea of set-off was correct; that he had paid the plaintiff all that his services were worth, and that he would not have instituted his suit, or thought of charging these fees, if he (witness) had not ceased to employ him (plaintiff) as attorney; that witness was not an attorney at law, but he knew what writing a deed was worth, and what was the customary charge, he having deeds drawn there, and knew the usual charges made for the same; also, that the charges made by plaintiff for writing deeds were exorbitant, and that he (witness) did not consider the services rendered by plaintiff in the case of Jones against Williams of any value to witness, but they werein fact a detriment to him.

In charging the jury the judge said: 'You are the judges of the evidence, and must reconcile, so far as you can, any difference or contradictions between the parties themselves or other witnesses; but you should give greater weight to the evidence of experts testifying to matters peculiarly within their knowledge than that of persons not having such knowledge, and in doing so you may discard such portions of the testimony as you do not believe, and accept only such as you do believe.' This portion of the...