McIntire v. McQuade , 63 Ga. App. 116 ( 1940 )

1. Exceptions pendente lite can not be considered in this court where there is no assignment of error in the bill of exceptions either upon the exceptions pendente lite or directly upon the judgment complained of in the exceptions pendente lite. An assignment of error in the brief of the plaintiff in error, either upon the exceptions pendente lite or upon the judgment complained of in the exceptions pendente lite, is not sufficient.

2. The undisputed evidence demanded a finding in favor of the plaintiff for the value of the services performed by him as attorney at law for the defendant executor, and that the contract for such services terminated within four years next before the filing of the present suit. The judgment for the defendant was contrary to law and without evidence to support it.

DECIDED JULY 5, 1940. REHEARING DENIED JULY 30, 1940. On December 31, 1938, F. P. McIntire brought suit in the municipal court of Savannah against Thomas A. McQuade as executor of Margaret McQuade, to recover $279. In the bill of particulars attached to the summons it appeared that the sum sued for consisted of various items alleged as due by the defendant as executor, for services performed by the plaintiff, as follows: services performed in the collection for the estate of $2244.54 from Roy Swindelle, such services extending from July 30, 1934, to February 2, 1935, $224; services rendered in the preparation and execution of a deed in connection with the foregoing matter, $10 (no date); contract and affidavit of Lester Campbell on work done at 324 East Anderson Street, October 1, 1934, $5; appearance before the tax equalizers and securing, on September 7, 1933, a reduction on certain designated property, amounting to $1320, $15; appearance before the city tax-assessors and "securing a reduction on properties" $10 (no date); another appearance before the tax-equalizers and securing a reduction in taxes on stated property amounting to $352, $15 (no date).

The defendant demurred to the plaintiff's suit and bill of particulars, on the grounds, that the date of the performance of the services in drawing the Roy Swindelle deed was not alleged; that no facts were alleged to show how the defendant became indebted to the plaintiff for drawing such deed; that it appeared that the services as to the contract and affidavit of Lester Campbell were barred by the statute of limitations; that it appeared that the account as to the appearance before the tax equalizers, September 7, 1933, was barred by the statute of limitations; that the item of $10 for services alleged to have been rendered in appearing before the tax-assessors failed to allege what properties were referred to therein, and the date when such services were performed; and the item of $15 charged for obtaining a reduction of $352 on stated property failed to show the date when the alleged services were rendered.

The plaintiff filed an amendment alleging that the deed from the defendant as executor to Swindelle was executed and delivered on August —, 1934, for the reason that the original security deed made to the defendant's testatrix on April 19, 1925, by J. M. Rustin Jr., for $2300 principal, secured by a conveyance of certain property, had become lost or misplaced and was not available for cancellation; that the property had been conveyed by Rustin to B. P. Wood, and by Wood to Hannah Bradley, and by Hannah Bradley to Swindelle, and it was considered proper to execute the deed, and the plaintiff was directed and engaged by the defendant to perform such services, which were aside from and in addition to work required to be done as set forth in the first item of the bill of particulars; that the appearance before the city tax-assessors was concerning lot 19 Floyd Ward in the City of Savannah, and was in 1933 after April 13; that the appearance before the equalizers and obtaining the $352 reduction was also in 1933 after April 13; that the plaintiff, until and subsequently to April 5, 1935, represented the executor as stated, generally as attorney in the performance of the defendant's duties as executor, and the items of the bill of particulars were incurred expressly upon the employment of the defendant executor in the discharge of his duties, and "were and are a part of the costs of administration of said will;" that the "employment contemplated were legal services until the executor should be discharged, but on September 13, 1937, and subsequently thereto, defendant received notices of the items of this suit, with request for payment, but to which notices and request no reply or denial of liability was ever received;" that on July 29, 1938, a caveat was filed by the plaintiff to the discharge of the defendant as executor; and that the notice of the plaintiff's claim "stops the running of any statute of limitations, particularly where the same is followed by a caveat filed as alleged."

The defendant executor demurred to the plaintiff's amendment, on the grounds that the facts alleged in the first paragraph thereof show that the services therein set forth were performed in August, 1934, and were barred by the statute of limitations; that the allegations of the second paragraph of the amendment are not sufficient to withstand the original demurrer, the services as to the last executor's item having been rendered more than four years before the filing of the suit; that the allegations of fact in the fourth paragraph of the amendment show that the services were performed more than four years before the filing of this suit; that the allegations of the fifth paragraph of the amendment are irrelevant and immaterial, in that it appears from the items in the bill of particulars that the services sued for were rendered more than four years before the institution of this suit, and the allegations of such paragraphs to the effect that the plaintiff filed a caveat to the application for discharge of the defendant are insufficient in law to avoid the bar of the statute of limitations.

The defendant answered, denying that he was indebted to the plaintiff in any sum, alleging that the item of $224 claimed for services in collecting the Roy Swindelle debt was barred by the statute of limitations, as that matter was entirely settled in October, 1934; that the charge for drawing the Roy Swindelle deed was for services rendered to Swindelle and should be charged to him, and each item is barred by the statute of limitations; and that as to the other items alleged the defendant has no knowledge, except that all of such items are barred by the statute of limitations.

The trial judge, on March 3, 1939, sustained the demurrer to the bill of particulars and to the plaintiff's amendment, and struck five of the six items from the bill of particulars. This left only the $224 item. On March 6, 1939, the plaintiff tendered and had certified and filed exceptions pendente lite to the judgment sustaining the demurrer. The case proceeded to trial on the item of $224 alleged by the plaintiff to be due to him by the defendant for services performed in the collection of certain moneys for the estate from Roy Swindelle. The trial resulted in a judgment for the defendant. The plaintiff moved for a new trial on the general grounds. The motion was overruled, and the plaintiff excepted. The bill of exceptions recites that the court sustained the demurrers to the part of the petition as amended, and that within the time allowed by law the plaintiff properly had certified and allowed as a part of the record in the case the exceptions pendente lite, "in which exceptions the plaintiff did assign the said order and judgment as error and as being contrary to law;" and further recites that the plaintiff prays that the bill of exceptions be certified "in order that the errors complained of may be considered and corrected by the Court of Appeals." The plaintiff specified in the bill of exceptions such exceptions pendente lite as a material part of the record. The petition of the plaintiff and the amendments thereto, together with the demurrer of the defendant, as well as the exceptions pendente lite to this judgment sustaining the demurrer, were certified and sent to this court. 1. There is no assignment of error in the bill of exceptions on the exceptions pendente lite sued out by the plaintiff to the sustaining of the demurrer to the petition and striking therefrom five of the six items sued for, nor is there any assignment of error in the bill of exceptions on the judgment of the court sustaining the demurrer and complained of in the exceptions pendente lite. The Supreme Court in answer to a question certified to it by this court ruled as follows: "Notwithstanding the fact that the bill of exceptions recites that exceptions pendente lite to the ruling on a demurrer were allowed and ordered filed, and specifies the exceptions pendente lite as a material part of the record, and copies of such exceptions pendente lite are sent to the Court of Appeals as a part of the record, in the absence of any assignment of error in the Court of Appeals either upon the exceptions pendente lite or upon the ruling therein complained of, no question is presented for decision by the Court of Appeals." McIntire v. McQuade, 190 Ga. 438 (9 S.E.2d 633). The fact that the plaintiff insists upon these exceptions pendente lite and assigns error thereon in the brief filed by him in this court before the call of the case for argument, which brief was served upon counsel for the defendant prior to the call of the case in this court for argument, does not constitute a sufficient assignment of error. The Supreme Court further ruled: "Briefs of plaintiff as defined by Rule 17 of the Court of Appeals shall not in any case be used for the purpose of assigning error, and no assignment of error, whether special or general, in such brief shall be considered by the Court of Appeals." McIntire v. McQuade, supra.

2. All of the items sued for by the plaintiffs were struck from the petition on demurrer, except the item of $224 alleged to be due to the plaintiff by the defendant for services performed in the collection from Roy Swindelle of certain moneys for the estate represented by the defendant. The only question left in the case was whether the defendant was liable to the plaintiff for the services performed by him in the collection of the Roy Swindelle loan, and as to whether the claim of the plaintiff for these services was barred by the statute of limitations, in that the services were performed more than four years before the institution of the suit. The undisputed evidence shows that the plaintiff was employed as attorney by Elizabeth McQuade, acting for the defendant executor, to attend to legal matters in connection with the estate which was represented by the executor, among which legal matters was the collection of an amount due to the estate, represented by a security deed to certain real estate, executed by Swindelle in favor of the defendant's testatrix; that the Swindelle collection started in July, 1934, and the work of the plaintiff in connection therewith continued until February 2, 1935; that cash and Home Owners Loan Corporation bonds were collected by the plaintiff in settlement of this debt; that all but $9.08 was collected from Swindelle and received by the estate; that the plaintiff made several efforts to collect this sum from Swindelle, without success; that his last effort was by a letter dated February 2, 1935; that shortly thereafter the plaintiff discontinued his effort to collect this balance, on being told by the defendant executor that the amount was "so small that it wasn't worth bothering with;" that the fee charged of $224 was a fair and reasonable proportion of the sum of $2244.54 actually collected on the Swindelle debt; that the defendant executor knew that the plaintiff attended to all legal matters for the estate; that the executor, being a resident of Tampa, Florida, could not attend to the affairs of the estate, and had these affairs attended to by his sister, Elizabeth McQuade; and that the executor admitted that "he acquiesced in all of the work by McIntire for the estate, and knew that McIntire was engaged in the estate's legal affairs."

The brief of evidence contains the following statement of a portion of the defendant's testimony: "He does not remember definitely any conversation by McIntire at that time, regarding the balance due by Swindelle and McIntire's efforts to collect from Swindelle this balance, but does not deny that such a conversation was had. The amount still due by Swindelle was so small it is probable that he told McIntire to discontinue collection efforts. This conversation could have been had some date subsequent to February 2, 1935." The suit was filed on December 9, 1938. A finding for the plaintiff was demanded, for the value of his services performed in the collection of the Swindelle loan, and that the plaintiff did not complete the performance of his services in that regard until after February 2, 1935, which was within four years from the date of the filing of the suit against the defendant for the value of the plaintiff's services. The evidence demanded a finding that the plaintiff was employed under authority of the defendant, that he continued in this employment with knowledge and acquiescence of the defendant, and that the reasonable value of the legal services performed by the plaintiff attorney was $224.

Where one renders services valuable to another, a promise is implied to pay the reasonable value thereof. Code, § 3-107. "Where no special contract is made, the attorney may recover for the services actually rendered." § 9-611. There is no contention that the sum charged by the plaintiff for the services performed by him in the collection of the Swindelle loan for the estate represented by the defendant was not fair and reasonable. The estate represented by the defendant accepted and received the benefit of the services actually performed by the plaintiff; and unless barred by the statute of limitations, the plaintiff is entitled to collect the reasonable value of such services. Whether or not the evidence demands a finding for the plaintiff as to the value of the services, it demands a finding for the plaintiff for the value in some amount, as the jury may find under the evidence. A judgment for the plaintiff in some amount was demanded, and the judgment for the defendant was unauthorized. It is undisputed that the defendant informed the plaintiff, after February 2, 1935, to discontinue his efforts to collect the entire balance due by Swindelle to the estate as the balance was trivial and not worth "bothering" about. This was within four years from the filing of the present suit. It follows that the judgment of the judge of the municipal court, who heard this case without the intervention of a jury, was contrary to the law and without evidence to support it, and that on the contrary a verdict and judgment for the plaintiff were demanded. It was error to overrule the motion for new trial.

Judgment reversed. Sutton and Felton, JJ.,concur.