Young v. Merkel

Opinion by

Me. Justice McCollum,

This suit was brought to recover compensation for professional services rendered in an action of ejectment in which Mendon F. Ludwig et al. were plaintiffs, and George Regan was defendant. The plaintiff herein was employed by Regan as- early as 1868, and it appears that in pursuance of his employment he directed, and was present at, the making of surveys of the land in dispute, and assisted his associate in the preparation and trial of the case which resulted in a Verdict for the defendant on the 4th of September, 1873- A rule for a new trial having been granted he prepared an argument against it, but for reasons which need not be stated here it was not discharged until April, 1889. As often as the rule was on the argument list he went over and revised his previous preparation to resist it, so that it is reasonable to suppose that when the time came for arguing it he was well equipped for the performance oE that duty. In 1883 or 1884, the defendants herein having previously purchased the land of Regan on terms which enabled them to retain a portion of the purchase money until he established his title, and being desirous of having the rule discharged, employed coúnsel to look after it, and on his suggestion they associated the present plaintiff with him in 1886. They thus became liable to the plaintiff for his services, after that date, in connection with the business for which he was employed. They say they had a contract with him by which they agreed to pay and he agreed to accept twenty dollars as full compensation for assisting their other counsel in getting the rule dischai'ged. He says there was no agreement between him and them in regard to his compensation, and that he ought and is entitled to have from them what his services are worth. Two of the defendants, and the counsel with whom the plaintiff was associated in rendering the services sued for, testified plainly and positively that there was such a contract, and the plaintiff testified as positively and plainly that there was not. There was no attempt by either party to impeach these witnesses, and their veracity is unquestioned, save by the contradiction in their testimony, and this may be attributed to an honest dif ference in recollection.

A .peculiar feature of the case is that while the learned court very properly held that the recovery, if any, must be limited to the value of the service rendered by the plaintiff after his employment by tbe defendants, the trial was so conducted that it resulted in a verdict in his favor for the exact sum he claimed, to wit: one half o.f his estimate of the value of the services he-rendered in the case after April, 1873. It is quite evident that this action was brought on the theory that as the “defendants bought the land of Regan they ought to pay one half of the expense of defending his title to it. This thought pervades the whole of the plaintiff’s testimony and is frequently and plainly expressed therein. But it has neither a legal, nor an equitable basis. As we have seen, Regan was bound-to maintain his title in order to get the purchase money. He erupted the plaintiff and other counsel to defend it, aud their services in the ejectment, from the institution of it to final judgment therein, were-properly chargeable to him. ■ That the plaintiff considered it to ’ be his dut3T to Regan-to continue in the case until it was finally determined is evidenced b3r his preparation of an argument-against a new trial, 'by his repeated revisions of it, and his unavailing efforts to get the rule discharged during thirteen 3rears immediately preceding his employment by the defendants. It is further shown b3r his declaration or statement in> 1884 that the case was still in his hands as counsel for ReganIn short it is beyond question that for his services in the ejectment prior to 1886 these defendants are not liable. What then were his services in the case after that time? Were they performed un der a contract ? If not, what was their value ? These-were questions to be answered by the juiy upon a dispassionate consideration of all the testimon3r. To assist them in the performance of their duty the court was required to instruct them in the law applicable to the case, and it was proper for it to call their attention to the evidence on each side and to point out its relevancy to and its bearing on the issues. If, however, it attempted to review the evidence, it was bound to do so impartially and adequate^’. The principal complaint of the appellants is that the charge was in the nature' of an argument for the plaintiff, and was partial, inadequate and misleading. Is-this complaint well founded ? In support of it they direct our attention to thé charge as a whole, and particularly to the portions of it which constitute the. third, fourth and fifth specifications of error.

It is observable that throughout the charge particular stress was laid by the court on the alleged peculiar fitness of the plaintiff, grounded upon the information he acquired in the service and at the expense of Regan, for the work he was engaged by the defendants to assist their counsel in performing, and that there was no allusion in it to the fact that in rendering this assistance he represented Regan as well as the defendants. In that portion-of the charge which forms the subject of complaint in the third specification there was a manifest purpose to throw doubt upon and discredit the defendants’ testimony in relation to a contract and to convey to the jury the impression that in the opinion of the court it was quite unlikely that such a contract was made. In'it, all the circumstances, remote and proximate; which the learned court apparent]}1- supposed were inconsistent with the defendant’s claim that there was a contract which fixed the compensation of the plaintiff for his services after his employment by'them in 1886, were carefully grouped and used in execution of such purpose, but there was no mention of the circumstances in harmony with and corroborative of their claim, unless the slight reference to the memorandum on the back of the plaintiff’s receipt is regarded as such. In that portion of the charge complained of in the fifth specification there was a substantial repetition of the circumstances mentioned in the third, and the jury were told that in considering them as affecting compensation they should remember “ that the litigation finally resulted in a victory for the defendants,” but they were not reminded that it was a victory which was mainly due to the services rendered in the case prior to 1886, or that-the principal benefits arising from it belonged to the estate of the defendants’ vendor. But we need not pursue this subject further. The result of our examination of the case is that we are unanimously of opinion that the appellants have just cause to complain of the charge.

As the questions and answers complained of in the first and second specifications were not excepted to in the court below they will not be considered here. ' There is no error in the instruction which is the subject of the fourth specification and we cannot sustain the seventh. The third, fifth and sixth specifications are sustained and the others are overruled.

The plaintiff should have from the defendants fair and just compensation for his services in pursuance of their employment of him. In ascertaining the compensation, the jury should consider the nature and amount of the services and all the circumstances which may legitimately affect it, but the plaintiff should not be permitted to recover from the defendants directly, or indirectly, for any services he rendered in the ejectment previous to 1886.

Judgment reversed and venire facias de novo awarded.