Vilas v. Downer , 21 Vt. 419 ( 1849 )

The opinion of the court was delivered by

Poland, J.

It is objected in this case by the plaintiff, that the various questions, which have been raised and argued upon the report of the auditors, are not properly before this court for revision, because they do not appear to have been made by the exceptions, filed to the report by the defendant in the county court. It is a well settled rule in this court, that no questions will be considered here, except such as appear, by the record, to have been raised and decided by the county court; and it is, to be sure, usual, for all the various exceptions and objections, in such cases, to be made in writing, and filed in the county court; and such exceptions do usually show, what were the questions made and decided below. But that is a mere rule of practice, which the parties or court might waive; and if the questions are raised in the county court by mere parol exceptions, without objection there, or by permission of the court, it cannot be objected to here, provided the decisions of the court below are placed upon the record in some other form. In this case all the questions made and decided are incorporated into the bill of exceptions, allowed and certified by the judge who presided in the county court, and are regularly before us for revision.

From the report of the auditors in this case we think it is apparent, that they allowed the plaintiff’s charges, as they were presented before them, solely upon the ground, that they were charged according to his usual and customary rule of charging for his professional services, without reference to their being reasonable, or that they had been acquiesced in or assented to by the defendant. This, then, presents the question, as to what should be the rule of compensation for the services of an attorney, who is employed by a client to manage a suit, without any special agreement as to the amount of his charges for such service.

In England, and in some of the neighboring states, such questions cannot well arise, because the bills of attorneys for services for their clients are always settled by a taxation, to be made by a master, or prothonotary, of the court; and, in actions to recover for their services, the amount is fixed by such taxation. But in this state we have no such practice; and attorneys are left, in common with every other class of citizens, who bring suits to recover the price of their labor, to commence their suits and have not only their right but amount of recovery determined by a jury, or by auditors, according to their choice of actions. What rule, then, should govern the triers, in fixing the amount of damages to be awarded to a plaintiff in such a case 1 In all other cases of employment, or hiring, where no stipulation is made as to price, the law implies a promise, or agreement, on the part of the employer, to pay the person employed such sum, as his services are reasonably worth, or as he reasonably deserves to have; and on the purchase of goods, without express stipulation as to price, the purchaser is only bound to pay what the goods are reasonably worth.

We are not able to find any reason, or authority, to distinguish the rule in relation to the employment of lawyers from that which obtains in every other employment for service. It must of course be more difficult, often, to determine what the sum should be, for service, the value of which depends much upon professional skill and.learning, than in the case of mere mechanical or physical labor ; but after all we think the same principles must govern both, and that in this case the auditors should have examined the plaintiff’s charges, and allowed him what he reasonably deserved, with a proper reference to the nature of the business performed by him for the defendant, and his own standing in his profession for learning and skilfulness, whereby the value of his services was enhanced to the defendant.

For the purpose of aiding in the determination of the value of the plaintiff’s services, we think it was proper for the auditors to receive evidence of the usual prices charged and received for similar services to those rendered by the plaintiff for the defendant by other men of the same profession with the plaintiff, in the same vicinity, and in the same courts ; and that the evidence offered by the defendant for that purpose, and which was rejected by the auditors, should have been received. Such evidence could not, from the nature of the case, furnish an exact and certain rule to determine the amount of the plaintiff’s charges; as other ease's, precisely like those of the defendant, might not be frequent, and other attorneys of precisely equal professional reputation and skill with the plaintiff might not be found in the vicinity; but we think such evidence would afford an approximation to the true rule to govern the plaintiff’s charges. In all ordinary cases, in determining the value of services, evidence is received of what is commonly and usually charged by other persons for the like services ; and ill determining the value of goods, evidence is received of what similar articles are bought and sold for, in order to ascertain their value in market; and in our opinion the price of a lawyer’s professional labor must be ascertained and determined by the same rule. It would be wholly unjust, to require a person employing a lawyer to manage a suit, (where of course it could not be known to either party, how long it would continue in court, or the amount of professional labor, which would be required to carry it through,) to stipulate as to the amount of his charges, or else be compelled to pay such charges, as the lawyer should see fit to make against him.

It is urged by the plaintiff in this case, that, inasmuch as the defendant gave no notice of his dissatisfaction with his charges, when he rendered his account, covering a portion of these charges, but suffered him to continue in his cases to their termination, therefore he is now precluded from objecting to their amount. Where a lawyer is employed by a person, who has a full knowledge of his rate of charges, without stipulating at all as to price, it might be fairly inferred, perhaps, that he expected "to pay at. such rates, and be equivalent to an express contract to pay them; but nothing appears from the report in this case, that the defendant knew anything of the plaintiff’s rate of charges, until the rendering of his account. The defendant’s suits were at that time in court, and there are manifest reasons, why the defendant might not desire to dismiss the plaintiff at that stage of his business, or even to express his dissatisfaction with his charges to him ; and we think bis mere silence upon the subject, or suffering the plaintiff to complete his then engagements, cannot fairly be construed into such an acquiescence in the amount of the plaintiff’s charges, as to estop Mm from- after-wards disputing them. It is sufficient upon this part of the case, however, to say, that the case does not appear to have been decided at all upon that ground, either by the auditors, or the county court.

The various authorities, which have been cited by the plaintiff in support of this assent, or acquiescence, do not seem to apply to a case of this character; and in the second volume of Cowen & Hill’s Notes, where the authorities are all collected, it is expressly laid down, that it only applies to mercantile dealings and transactions.

The judgment of the county court is therefore reversed, and the case will be recommitted to auditors.