Codman v. Armstrong , 28 Me. 91 ( 1848 )

Shbtley J.

The plaintiffs as counsellors and attorneys were employed by the defendant in the defence of a suit against him, prosecuted by the Savage Manufacturing Company. The defendant prevailed in that suit. This suit has been commenced to recover a balance alleged to be due to the plaintiffs, who have in addition to the usual fees, charged the items for travel and attendance, taxed for the defendant in the bill of costs, which he recovered against that company.

It is admitted, that these plaintiffs cannot recover for the items of charge, which accrued to Codman before he became a partner of Fox unless they can be considered to have paid Codman for those services. There is no item of charge in their account for money paid to him ; no proof is presented, that any thing has been paid to him; and no proof, that the defendant has or would have assented to any such payment. Neither the account as presented, nor the proof exhibited, would authorize a recovery for those items.

The sum of $27,24, paid by the company to Codman, was for costs accruing to the defendant at the term of the Court holden in the month of October, 1837, after the plaintiffs had become partners, and while they were acting as attorneys for the defendant. It is immaterial to which partner a payment is made. A payment made to either partner is a payment to the partnership, if made with reference to business within the scope of the partnership, as this appears to have been. It might have been competent for Codman, by virtue of his previous employment, to have appropriated so much of it to his own use as would have paid his previous charges made on account of the same suit. This he does not appear to have done. On the contrary it appears to have been credited to the defendant by the partnership. That appropriation after the lapse of ten years could not be changed since the commencement of the suit. The instructions and directions upon this point were correct.

The plaintiffs claimed to recover for the items taxed in the bill of costs according to a usage alleged to exist in the county of Cumberland authorizing such charges.

The bill of exceptions states, that ££ the defendant’s counsel proposed to submit the reasonableness of this usage and rule to the jury, to which the plaintiffs objected, but the Judge overruled the objection, and permitted the defendant to introduce evidence on this point, and to argue it to the jury.” The counsel for the defendant insists, that he did not offer any such testimony; that none was in fact introduced; and that he did not propose to introduce any; and that the exceptions must have been inadvertently allowed. That the instructions and rulings on this point should receive a construction in conformity, to what he alleges, that they were, contending that they only submitted the reasonableness of the charges and of the compensation to the consideration of the jury. The Court must consider them to be correctly presented by the bill of exceptions; and must give effect to the plain and obvious meaning of the language used. Being thus considered, much of the language used might properly receive such a construction. There is however a portion of it, which will not admit it. In addition to that already noticed, it is stated, that ££ the Judge instructed the jury among other things, that whether such usage and rule were reasonable or not, the jury must judge from the evidence and circumstances of the case, as they were in all cases the judges of the reasonableness of charges made in an account.” The effect of the latter clause is only to assign the reason for authorizing the jury to judge ££ whether such usage and rule were reasonable or not.” It did not withdraw the consideration and decision of its reasonableness from the jury. The law having been stated to the jury for their guidance, they may in all cases judge of the reasonableness of charges made in an account. When there is proof of an agreed price or compensation, or of an usage which might affect it, or from which an agreement might be inferred, it would not be correct to authorize them to judge of the reasonableness of charges irrespective of such usage or agreement. When a usage, which may affect the rights of the parties, is presented by the testimony, it becomes the duty of the Court to determine, whether, if proved to the satisfaction of the jury, it be reasonable and operative. Bodfish v. Fox, 23 Maine R. 90.

In such case the counsel for the defendant insists, that the verdict for the defendant should not be disturbed, because, as lie alleges, it appears, that the plaintiffs not being entitled to recover for the items of charge accruing before they became partners, and being obliged to admit the credit made for the amount paid since that time, can recover nothing, if they are entitled to receive compensation according to the usage. This would seem to be the result, if they cannot by virtue of a previous demand for payment, recover for interest accruing on their account before the commencement of the suit. There is no proof of such a demand, the bill of exceptions docs not purport to exhibit all the testimony. When there has been an erroneous trial, the party aggrieved cannot be deprived of an opportunity to present his case anew, unless it be made fully to appear, that he could not derive a benefit from it.

Exceptions sustained, and new trial granted.