Gugel v. Olin ( 1919 )

Winslow, C. J.

The jury having found that the appellants’ firm employed the plaintiff to assist them upon the understanding (mutual of course) that they were personally to pay him, the vital question in the case is simply whether there is any evidence upon which that finding can stand.

It is certainly a remarkable transaction which the plaintiff claims and which the jury have found. Lawyers are not wont to employ counsel and agree to pay them out of their own pockets, at least lawyers of long experience and extensive practice, but that does not make the plaintiff’s theory incredible. —

Giving the most favorable construction to' the evidence which it will reasonably bear, we find a request on the part of the appellants that the plaintiff assist them in the case, and a consent thereto' by the plaintiff followed by the rendering of the assistance; but we find no express promise to pay for such assistance. Of course an express promise to pay for services rendered by request is not ordinarily necessary; a promise to pay will usually be implied from the very fact of the request; but the relations of the parties may be such or the circumstances surrounding them of such a character that no such implication will arise. Thus no contract to pay is implied when a parent or one standing in that relation requests services of a child living at home, though the child be an adult (Taylor v. Thieman, 132 Wis. 38, 111 N. W. 229), and the same rule applies where services are rendered between persons who are defacto members of the same family, though there be no- blood relationship. The relationship of the parties is such that it is naturally presumed that the services are rendered gratuitously, without thought of compensation on either side, and hence there is no implication of a promise to compensate, but the party claiming compensation must show an express promise therefor. Many valuable services are simply the incidents of feelings of friendship or neighborly accommodation and are universally expected' to be gratuitous. In this class fall board and lodging furnished to an invited guest (Harrison v. McMillan, 109 Tenn. 77, 69 S. W. 973), political services rendered to a friend in a campaign (Levy v. Gillis, 1 Penn. (Del.) 119, 39 Atl. 785), the indorsement of a friend’s note (Hagar v. Whitmore, 82 Me. 248, 19 Atl. 444), mutual services between friends rendered without intent to charge (Gross v. Cadwell, 4 Wash. 670, 30 Pac. 1052), and many others that might be named. See, on this subject, 2 Page, Contracts, § 777.

We think the present case falls within this latter class. This was the situation: The plaintiff’s brother, with whom he was on the best of terms, was engaged in serious litigation. Naturally the plaintiff must have felt a deep- interest in the result; he would be less than human were it otherwise. His brother had employed an entirely competent firm to attend to his interests. This firm was not looking out for professional aid, but on learning that the client had a lawyer brother who was in the city and was also a classmate of Mr. Stebbins, that gentleman expressed a desire or a willingness to see and talk over the case with him. As a result of this the plaintiff came to1 Mr. Stebbins’s office and it was then arranged that plaintiff was to participate in the case, but no word was said about compensation. It stretches credulity to the breaking point to suppose that Mr. Stebbins then had any idea of retaining the plaintiff at the expense of his firm. Young lawyers sometimes get help from older lawyers in their cases and pay for it themselves, if, as is rarely the case, the older lawyer makes any charge; but old established law firms handling large interests all the time do not do things that way. If, by reason of the magnitude or delicacy of the questions involved, they feel the advisability of counsel, they tell their clients so, and, with their clients’ consent, employ the best of counsel, at the expense of the clients.' The court is not only entitled to but must take notice of this fact in judging what the acts of the parties here meant: it is part of the atmosphere of the transaction. To our minds the inevitable and only reasonable conclusion from the circumstances here is that Mr. Stebbins supposed that the plaintiff was desirous of assisting his brother, and for that reason only, and with no thought of hiring him, suggested that he would be pleased to have the plaintiff participate in the case. The whole atmosphere and surroundings repelled the idea that employment was intended. The letters which immediately followed tend to confirm this conclusion. The plaintiff says that he wrote the letter of October 28th because he “wanted to clear the matter up so there could be no misunderstanding between myself and Mr. Stebbins about my coming into the case and my position in the case.” Strange indeed, if this was the purpose of the letter, that no word was said in it concerning the only thing about which there well could be any misunderstanding, namely, the question as to the plaintiff’s compensation, if he expected any. But, granting that the plaintiff honestly supposed that the appellants’ firm had consciously hired him at their own expense because they felt that they needed his help, the reply of Mr. Stebbins to this letter was certainly enough to put him upon inquiry on this point, if not to convince him that Mr. Stebbins did not so understand the situation. In this letter Mr. Stebbins says that “as soon as I knew of the relationship I felt sure you would have a deep interest in the case, and it was for this reason that I asked your brother to bring you over to the office.”

The meaning of this is unmistakable; it was the deep interest which Mr. Stebbins supposed plaintiff would have in his brother’s troubles which led him to suggest to plaintiff that he participate in the case. It seems that any person who _ was really trying to clear up misunderstandings and leave no doubt as to his position in the case would infallibly have discovered from this letter that there was a vital misunderstanding on the question of compensation, and would have at once brought the question up definitely and pointedly, either by personal interview or by letter, and had it settled before proceeding further. Not so, however, with the plaintiff; he closed the correspondence on the subject right there, knowing that Mr. Stebbins’s thought in the matter was that the plaintiff’s interest in his brother’s welfare would be a sufficient inducement for him to assist in the lawsuit, and proceeded to pile up a bill of $400 for legal services against brother lawyers.

That the plaintiff at some time during the progress of events learned that Mr. Stebbins did not consider that he had personally employed him is made quite clear by the letters to his brother in March. He then begins to prepare for the present lawsuit. March 13th he writes his brother asking him to send a statement of Stebbins’s bill when he pays it; March 20th he writes asking his brother what he said to Stebbins, as it “will become very material if I should have to proceed against Stebbins and the rest for my compensation;” and five days later he writes that he has sent his bill to the Stebbins firm and cautioning his brother not to say anything, as he may have to* bring a suit for his pay. All this preparation for a lawsuit took place before the plaintiff had even presented his bill, and before a word had been said between plaintiff and the appellants about compensation.

It is not a pleasant picture thus drawn. We of the bench and bar talk,'much of the nobility of the profession. We say, and we say truly, that the practice of law should be a ministry at the altar of justice rather than a money-making business, but such transactions as these make this thought unintelligible to the layman, and tend to justify the too frequent jeers at the law and its administration.

Mr. Tulliver regarded all lawyers as “raskills” and thought that the only sure way to* win a lawsuit was to hire the biggest “raskill” as his own lawyer. This was on the theory that the practice of the law is simply a battle of shrewd wits, which is to* be won by the sharpest trickster. There should be nothing in the conduct of any lawyer to lend color to that belief. His standard of conduct can hardly be toó’ high. Chief Justice Ryan well said (Wight v. Rindskopf, 43 Wis. 344, 356), “The profession of the law is not one of indirection, circumvention, or intrigue.” The lawyer who really believed his profession to be service at the shrine of justice-would have gone to his brother lawyer at the very first moment when he learned that they did not understand things alike and talked the matter over, and if he found that his brother was honest in his thought that no contract involving personal liability had been made (as is evident in the present case) would have at once abandoned any such claim as is here made.

By the Court. — Judgment reversed, and action remanded with directions to dismiss the complaint on the merits.