7 R.I. 265 | R.I. | 1862
This was an action of assumpsit, to recover for professional services, alleged to have been rendered to the defendant's testator, by the plaintiffs.
It was admitted, that the plaintiffs rendered services similar to those set forth in their declaration; but the defendant claimed, that those services were not rendered at the request of her testator. *268
Several causes are assigned for setting aside the verdict. It is said, that the judge who presided at the trial of the cause, in charging the jury that the defendant might be held liable upon an implied, as well as upon the express promise of her testator, erred, in omitting to charge them in the same connection, that the defendant's testator, when summoned in, as warrantor of the railroad company, in the suit in which the plaintiffs' services were rendered, retained other counsel, and that the corporation continued to have an interest in that suit; which testimony, it is said by the defendant, should have been stated for the purpose of rebutting any presumption that the plaintiffs were in the testator's employment. It does not appear, from anything before us upon this motion, that after the defendant's testator was summoned in, the corporation were under any legal obligation to defend that action. If such evidence was adduced, it was for the jury to consider it, and to determine how far it proved the fact, and how far the fact, in connection with the other circumstances in the case, did rebut any presumption, arising from other testimony, that the plaintiffs were employed by the defendant's testator. It is no ground for a new trial, that the court does not state to the jury the testimony; and if stated, that it is not stated in immediate connection with the rule of law that is supposed to apply to it.
We see no error in the instruction of the court, that if the defendant's testator (without an express promise or engagement on his part) availed himself of the plaintiffs' professional services in the ordinary mode in which clients avail themselves of the services of counsel, and nothing more appeared, a promise might be implied. If other testimony was offered, it was for the jury to determine how far such other testimony, in connection with all the facts in the case, negatived the implied promise.
Whether the verdict was against the evidence, or the weight of the evidence, we do not consider, since the testimony is not brought upon the record.
It appears, from the statement of the case as allowed by the judge who presided at the trial, that one of the plaintiffs, and by whom the services in question had been principally performed, was offered as a witness to sustain the issue on their part, but, *269 upon objection by the defendant, he was not permitted to testify; and that the other plaintiff was called as a witness on the part of the defendant, and did testify. It also appears, that those facts were alluded to by the plaintiffs' counsel in his closing argument. We see in this no ground for a new trial. The defendant had the right to exclude either plaintiff from testifying; but she objected to one of them, and introduced the other herself. It is to be presumed, that she exercised her right in the manner most advantageous to herself. As a fact in the case, she cannot complain of it; neither, that it was commented upon by the plaintiffs' counsel in his argument. If the defendant, without objection at the time, permitted the plaintiffs' counsel to draw inferences from this, or from any other fact in the case, which she or her counsel deemed to be unjust or unfair inferences; or, if without objection at the time, she, or her counsel, permitted the plaintiffs' counsel to indulge in a style of rhetoric or a course of argument calculated, in her opinion or in the opinion of her counsel, to improperly inflame, or prejudice, or mislead the jury, it is too late, after verdict, to except and assign it as cause for a new trial.
Another reason assigned is, that Taft, a witness for the plaintiffs, was, against the defendant's objection, allowed to state, that he had a conversation with the plaintiff Ames, and that he told the plaintiff Ames that the railroad company were not liable for the plaintiffs' services. Every admission of improper testimony does not entitle the adverse party to a new trial, as of course. The incompetent testimony admitted may be wholly irrelevant, or so collateral as not to be pertinent to the issue; or it may be immaterial. If it appears that the testimony objected to was material, in the sense that it probably influenced the verdict, the verdict should be set aside. But the record should show this; otherwise, the presumption after verdict is, that the verdict is founded upon competent proof. The time the conversation took place, nowhere appears. Assuming the declaration of the witness as made after the services had been rendered, and it would seem to be quite immaterial; as then the declaration could neither discharge the railroad company or charge the defendant's testator, — the liability against one of them having already accrued. But if the declaration was made or the notice given before the *270 services were rendered, or during the time they were being rendered, the fact itself would not be incompetent to meet and negative, so far as it went, testimony from the defendant to the effect, that the plaintiffs were employed by the railroad company.
Motion for a new trial overruled, and judgment rendered upon the verdict.
