Bonner & Goode v. Marx , 51 Miss. 141 ( 1875 )

Simrall, J.,

delivered the opinion of the court.

Bonner & Goode, attorneys and counselors-at-law, sued E. Marx to recover for professional services rendered to him.

The first count is on a special contract, to institute and prosecute to final judgment a certain suit in the fifth district court of New Orleans, Louisiana, for which they were to be paid $350.

The second count is indebitatus assumpsit for professional services rendered.

The third count was quantum meruit for like services.

The fourth count was for money had and received, produced by a sale of the plaintiff’s carriage. The case was tried by the jury on the issues of non assumpsit and payment, with a set-off filed.

The first question is, did the court err in excluding a part of Judge Stone’s testimony ? The witness had come to an understanding' with Marx, that he would pay the sum demanded in monthly installments. On the day an installment was due, Marx informed Stone that he had been told by Bonner not to pay to Goode but half the debt, and to pay Bonner the other half. Stone had agreed to taire $350 for the claim. Stone then agreed to settle with Marx Goode’s half of the $250, upon condition that he was to see or write to Bonner; and if Bonner confirmed Marx, the settlement at $125, which had already been paid to Stone for Goode, was to stand. Stone wrote to Bonner and also saw him in person, when Bonner denied altogether Marx’s statement.

The circuit court, at the instance of the defendant, excluded so much of this testimony as gave the response of Bonner to Stone’s inquiry. The reason assigned was, that it was hearsay testimony.

This was a misapprehension and erroneous application of the rule. Stone accepted for Goode'.one-half of the $250, contingent on the fact that Bonner had instructed Marx as he, Marx, claimed; and that Stone should either write to Bonner or see him in person, and was to abide the answer of confirmation or denial. Stone was referred by Marx to Bonner for information which should influence his conduct. The result of the inquiry was, of course, to be communicated to Bonner. The fact offered to be proved was, that Bonner was inquired of, and that he denied the statement made by Marx. An arrangement pertaining to the business was contingent on that, and Marx was bound by the declaration of Bonner in the same manner and to the same extent as if made by himself. Turner v. Yates, 16 How. (U. S.), 14; 1 Greenl. Ev., § 182. Such testimony is not hearsay; it ought to have been received. It was not controverted that Marx had paid $125 on the account. The testimony is conflicting, whether for the service embraced in the account, the plaintiff was to have been paid $250 or $350. Which ever sum the jury may have believed to be the true amount, a balance is due, unless the jury also believed that Goode had accepted the carriage from Love, in payment for his legal services. Both Love and Marx were interested in the subject of the suit brought by the plaintiffs in the fifth district court in New Orleans. Marx alone, however, had made himself responsible for the fee. Goode, with Marx, visited Love in Copiah county, in order to induce him to aid in its payment. He turned over the carriage at the estimated rate of $250. Whether it was accepted by Goode in absolute payment for the services rendered, or whether it was so much advanced in exoneration of Marx toward the debt, is left in doubt. Marx says that it was accepted by Goode in payment, and that he engaged with Goode to sell it for him. Goode says he took the carriage and turned it over to Marx for sale, on the guaranty, on his part, that it would bring $250.

Goode claims that for whatever sum short of $250 the carriage brought, Marx is responsible; that the vehicle was to be sold by Marx on account of the indebtedness, and for any deficit Marx should pay. It would seem that these parties settled the amount of the indebtedness at $250. Whether Goode took the carriage in payment, or whether it was accepted to be sold by Marx and credited on the debt, was a matter peculiarly for the decision of the jury. Whatever construction they placed upon the testimony, we are satisfied that the plaintiffs could recover under the fourth count, for whatever money may have been received on the sale of the carriage by Marx, was “ money had and received ” for the plaintiffs’ use. This is so, although Marx might be responsible on his guaranty for the $250. The first instruction granted for defendants was calculated to mislead the jury. It contained the proposition that recovery could not be had in this action for the price actually realized by the defendants for the carriage, but that he must be sued on the guaranty.

Judgment reversed and a venire facias awarded.