Hanley v. Waxman , 1922 Pa. Super. LEXIS 69 ( 1922 )

Opinion by

Gawthrop, J.,

. Plaintiff, an attorney-at-law, sued in assumpsit to recover the fair value of professional services rendered for defendant at his request. The affidavit of defense denied the employment and the reasonableness of the fee charged, as alleged in the statement of claim. .No other issue was raised. The jury found for plaintiff. From the judgment entered on the verdict comes this appeal.

In order better to understand the disposition of one of the six assignments of error, a brief statement of facts is required. Herman Waxman, son of defendant, was a private in the United States army. He was charged with desertion from the service and tried by a court-martial. Private Waxman employed plaintiff to represent him before the court-martial for a fee of $200, which, was paid in advance. About a month after the soldier was convicted and sentenced to five years’ imprisonment, defendant called plaintiff at New York on the telephone and requested him to come to Philadelphia, met him there the next day and engaged him to conduct an appeal in the son’s case. Plaintiff secured the son’s release and restoration to honorable standing in the army.

The first assignment of error complains of a variance between the allegations and the proofs. The record does not show that , this point was raised in the court below. If the testimony was not admissible under the pleadings, it should have been objected to on that ground. The question cannot be raised by a point for binding instructions and a motion for judgment n. o. v.: Boyd v. E. F. Houghton & Co., 269 Pa. 273.

The second assignment is to a portion of the charge wherein the learned trial judge told the jury that the sole question for them to determine was whether there was a contract between plaintiff and defendant whereby defendant engaged plaintiff as an attorney to do what was necessary to obtain the freedom of defendant’s son; and that any contract between plaintiff and the son obligating plaintiff to take his case and proceed with it had nothing to do with the case before them, because the question for them to determine was whether defendant told plaintiff he wanted him to do certain things and that' he would pay him for it. This was a correct exposition of the law applicable to the issues framed by the pleadings.

The third assignment complains of the affirmance of plaintiff’s second point, which was as follows:

“The things to be taken into consideration in determining the compensation to be recovered by an attorney are the amount and character of the services rendered, the labor, the time, and trouble involved, the character and importance of the litigation, the amount of money or value of the property affected, the professional skill and experience called for, and the standing of the attorney in his profession; to which may be added the general ability of the client to pay and the pecuniary benefit' derived from the services.”

We see no error in this instruction.

The fourth, fifth and sixth assignments charge error in refusing to give binding instructions for defendant, the dismissal of motions for judgment n. o. v. and a new trial. A careful examination of all the evidence has convinced us that it was sufficient to sustain the verdict. It follows that' it would have been error to enter judgment n. o. v. Nor can any just complaint be made against the action of the court in dismissing the motion for a new trial. No abuse of discretion is alleged or disclosed.

All the assignments of error are overruled, and the judgment is affirmed.