Wimpy v. Gaskill

• Citation: 76 Ga. 41
• Parties: WIMPY v. GASKILL et al.
• Decision Date: 17 February 1886
• Court: Supreme Court of Georgia

76 Ga. 41

WIMPY v. GASKILL et al.

Supreme Court of Georgia.

February 17, 1886

October Term, 1885.

1. The charge of the court in this case was unexceptionable.

2. Where an attorney brought suit, alleging that the defendants were indebted to him for professional services rendered, and the defendants pleaded the general issue; and further, that plaintiff was employed by their father to render the services charged for, and that he had paid the plaintiff for such services, this was not a plea of payment, but was an amplification of the plea of the general issue, and there was no error in instructing the jury that the burden was on the plaintiff to make out his case by a preponderance of evidence.

3. Where complaint was made in a ground of a motion for a new trial, that the court did not construe the written contract between the plaintiff and the father of the defendants, but the record shows that he did construe it, and left the jury to determine whether the services rendered by the plaintiff and involved in the suit were the same as those contracted for by the father, this was proper.

4. The evidence supports the verdict, and there was no error in refusing a new trial.

5. Where a motion for new trial was presented and overruled, and at the same term of court, a similar motion was again presented, the court was right in refusing to entertain it and in dismissing it.

Charge of Court. Pleadings. Burden of Proof. Contracts. New Trial. Practice in Superior Court. Res Adjudicata. Before Judge HAMMOND. Fulton Superior Court. April Term, 1885

John A Wimpy brought suit against Charles B. Gaskill, Clinton R Gaskill and Cora L. McKenney, formerly Gaskill, to recover for services alleged to have been rendered by him to them as attorney. Attached to his declaration was a bill of particulars, stating the cases for representing which he claimed fees. The defendants pleaded the general issue, and that the plaintiff had been paid for any services which he may have rendered; also, that the plaintiff was indebted to them for money collected and not paid over, which was pleaded as a set-off. By amendment, the defendants pleaded that their father, V. A. Gaskill, had made a written contract with a firm, of which the plaintiff was a member, for services to be rendered him in certain litigations, including the cases named in the bill of particulars, and that he had fully paid the plaintiff for such services. A copy of the written contract was attached to the plea. It provided that the plaintiff's firm agreed " to attend to the litigation that may arise, or has arisen, and now in court in Fulton county, Georgia, in the cases of the State of Georgia vs. V. A. Gaskill, concerning what is called the " Dobbins fee matter," etc. stating other litigations by like descriptive terms, and fixing the fees to be paid by Gaskill.

On the trial, the jury found for the defendants. The plaintiff moved for a new trial, assigning the following, among other things as grounds of error:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court charged as follows: " So you can look to the evidence, gentlemen, and ascertain from that whether they were litigations that arose in those cases specified in the written contract, and if they were, then they would be covered by the written contract, and Mr. V. A. Gaskill would be liable to Mr. Wimpy to pay him for the legal services rendered in those cases; but those defendants would not be liable, unless their liability appeared otherwise, as the court will explain to you."

(3.) Because the court charged as follows: " But if you find there was no such abrogation or setting aside of this written contract, but it remained in force, and that Mr. Wimpy's legal services were rendered under the written contract to Mr. V. A. Gaskill, and that there was no other or different contract between them and these defendants, Charles B Gaskill, Clinton R. Gaskill and Cora L. Gaskill, by which they were to pay him for legal services rended them; and...