Gabbert v. Penfield , 1907 Mo. App. LEXIS 126 ( 1907 )

BROADDUS, P. J.

The plaintiff is a lawyer and this suit is to recover compensation for his services in defending one Stewart Flynn, charged with murder, in the criminal court of Buchanan county.

Plaintiff’s evidence tends to show that on the twenty-fourth day of August, 1905, the defendant employed him to defend said Flynn on said charge without any agreement as to any specified amount therefor; that plaintiff under said employment secured the acquittal of the accused; and that afterwards he tendered to defendant a bill for his services rendered in the sum of one thousand dollars, which he agreed to pay; that he paid him on the account so tendered the sum of two hundred dollars and promised to pay the balance soon thereafter. The defendant’s evidence was to the effect that he did not employ plaintiff on his own account, but ' on behalf of said Flynn, and that the payment on the bill rendered was made in behalf of Flynn, and that he did not agree to pay the balance.

Only one instruction on the issue was asked on the respective sides, which the court gave. That for plaintiff presented the sole issue, viz.: whether defendant employed plaintiff to defend Flynn, and plaintiff afterwards rendered a bill to defendant for his services in the employment for one thousand dollars, and defendant paid two hundred dollars on the same, and agreed to pay the balance soon thereafter. Defendant’s instruction was to the effect that the burden of proof rested upon the plaintiff.

It is contended by defendant that he disclosed the name of his principal when he employed plaintiff and that as the services were performed for that principal, he was not liable for. the services so performed. To support this theory we are cited to Huston v. Tyler, 140 Mo. 252, where it is held that the “Defendant having disclosed to the plaintiff that he was acting simply as the agent of the principal maker of the note in procuring the loan, is not responsible because such principal rendered the note worthless by forging thereto the names of the other makers.” The case is not a parallel one and for that reason has no application. According to plaintiff’s evidence, and we must take it as controlling as it is sustained by the verdict of the jury, defendant employed plaintiff on his own account and not as agent for Flynn.

It is claimed that the court committed error in the rejection of certain testimony which relates to a conversation purported to have been held between Judge Culver, a member of the Buchanan County Bar, and defendant and which defendant communicated to plaintiff. We could not know Avhether there was any error as to that matter unless it was made to appear what the conversation was, so that we could judge of its competency and relevancy, therefore we cannot consider the objection.

Finally defendant makes the point that plaintiff’s petition does not state a cause of action. But we think it does. The petition in substance alleges the employment by defendant of plaintiff to defend Flynn on the charge of murder, that he did defend him successfully, and that afterwards he rendered to defendant an account for his services in the sum of one thousand dollars, on which defendant paid the sum of two hundred dollars and agreed to pay the balance. No objection was made to the petition until after the trial and judgment. We think it is at least sufficient to support the judgment.

Affirmed.

Ellison, J., concurs. Johnson, J., not sitting.