Chain v. Hart

Opinion,

Mr. Justice Sterrett:

In his “ History of the Case,” the defendant has furnished us with what purports to be a history of the rule of court under which the judgment was entered. This was not only unnecessary, but wholly irrelevant to the single inquiry presented by the record, viz., whether defendant’s affidavit discloses a sufficient defence to the plaintiff’s claim. It is quite sufficient for us to know that a court, having full authority in the premises, adopted the rule, and that it was in force when the statement of claim and affidavit of defence were filed.

The suit was brought to recover for professional services rendered and money paid by the plaintiff for defendant. The statement of claim is in due form, and sufficiently sets forth a good cause of action, calling upon the defendant for a specific affidavit of defence, such as is required by the rule of court. After setting forth with sufficient fullness and precision the circumstances under which the services were rendered, etc., the plaintiff avers that defendant contracted to pay him such sum or sums of money as they were worth, and appends thereto an itemized statement of the services and their value, together with the items of costs and expenses paid by him for the defendant. In his affidavit of defence, the defendant, after evasively averring that plaintiff never was his counsel in the suits specified in the statement of claim, and asserting that he had and still has a claim of $10,000 against William C. Hamilton & Son, in which “ Mr. Charles Hunsieker was his duly authorized counsel,” admits that plaintiff was associated with Mr. Hunsieker in endeavoring to collect said claim. He then avers that plaintiff, in assuming to act as his counsel, managed the suits unskilfully, and never collected said claim; that said suits were improperly brought by plaintiff, and by reason of said mismanagement and unskilfulness defendant suffered great damage, etc. These allegations may be well enough, as far as they go, but they fall far short of what is required by the rule of court. The affidavit is silent as to wherein there was any mismanagement, or in what the alleged unskilfulness consisted, of why the claim was not collected. The defendant contented himself with drawing his own conclusions from facts withheld from the court, and therein consists the fatal defect of his affidavit. If the facts from which he drew his conclusions had been stated specifically, as the rule requires, the court might and probably would have reached a very different conelusion. Be that as it may, however, it was the exclusive province of the court to determine, from facts properly averred in the affidavit of defence, whether the plaintiff was or was not chargeable with either professional unskilfulness or mismanagement.

The action of the court in entering judgment for the plaintiff -is so fully vindicated in the opinion sent up with the record that further elaboration is unnecessary. The first and second specifications are not sustained. The third specification is dismissed, for the reason that, in no event, would it have been proper for the court to have entered judgment for the defendant.

Judgment affirmed.