Anthony v. Stinson, 4 Kan. 211

Anthony v. Stinson

4 Kan. 211 | Kan. | 1867

By the Court,

Bailey, J.

This was an action originally brought in the district. court of Leavenworth county,1by LucretiaB. Stinson, as 'administratrix of her late husband, Samuel A. Stinson, and Theodore A. Hurd, surviving partner of said Stin*218son, to recover the snm of $1,610 from the defendant, for certain professional services as lawyers.

The answer of defendant set np: 1. A denial of every allegation in plaintiffs’ petition, except as to death of Stinson, appointment of his widow as administratrix, and the existence of partnership between Stinson and Hurd. 2. That said firm of Stinson & Hurd was indebted to said Anthony, on account for publishing* notices in the “Bulletin” newspaper, a copy of which account is set forth in the answer, amounting to $114; that there were no credits on said accounts, and asking that the said sum of $114, with interest, &c., might be set off against so much of the claim as might be established against him.

To this answer plaintiffs filed a reply, denying “each and every allegation of the said answer,” setting up a counter-claim, and each and every allegation of said answer setting* up and alleging new matter, and each and every part thereof.

A motion to strike out the reply was made by defendant’ s counsel, overruled by the court, and exception taken by counsel for defendant, after which the parties proceeded to trial, and under the instructions the jury found a verdict for plaintiffs, for the sum of $788.76.

The plaintiff in error complains that the court below erred — 1. In refusing to strike out plaintiffs’ reply. 2. In permitting Hurd to testify. 3. In refusing to allow Anthony to testify. 4. In refusing to allow Anthony to introduce his books as evidence in proof of his set-off. 5. In charging the jury that they must be “governed by the testimony of the lawyers as to the value of the legal services rendered.”

Of these, each in their order:

*219I. As to striking out the reply. It was urged in support of the motion to strike out that it was not responsive to the defendant’s answer, inasmuch as it denied each and every allegation of the defendant, setting up a counter-claim, while the demand which the defendant below was seeking to set up, was not a counter-claim, as defined by sec. 103 of the code, but was a set-off. We think this objection somewhat too technical to prevail, where the demand is set out, and the party is duly notified that his adversary will rely on it, even though he should err to the extent of calling it a counter-claim, when it would more strictly be termed a set-off. Such a mistake would be clearly covered by the provisions of art. 2, and secs. 124 and 148 of the code; and besides, we think the reply contains an ample and full denial of the allegations in the answer, as it denies each and every allegation of new matter in such answer.

II. As to the admissibility of the testimony of Hurd. This calls for a construction of sec. 323 of the code, and on this point it is contended by counsel for plaintiff in error, that inasmuch as the plaintiffs below consisted of the surviving partner of the deceased, joined with the administratrix of his deceased partner, representing the partnership of Stinson & Hurd, and not the estate of Samuel A. Stinson, the provisions of the section did not apply to the defendant below, the now plaintiff in error.

But here again we must differ with the learned counsel, and with the construction he would favor as too technical. We think the fair and obvious construction of this section to be, that no party shall, by virtue of the provisions of secs. 120 and 320, making parties witnesses, be permitted to prove by his own oath as wit*220ness what the deceased might perhaps have disproved had he been living. .

The reason of the rule is as applicable to this case as though Mrs. Stinson, as administratrix, had been the only party plaintiff. But neither party are-to be precluded from proving their case, by the testimony of living- witnesses, as before parties were allowed to testify.

Hurd was a good witness, because his adverse party was living, and in court to contradict him, if he should misstate the facts. And we fully approve of the rule laid down by the court, that Anthony could testify as to all matters in controversy which had transpired since the death of Stinson, and as to all matters respecting which said Hurd had testified.

III. The book of accounts of the Bulletin printing office was offered in evidence after proof made that the business of that office was Anthony’s business, and that the book was the book of original entries. The book, thus authenticated, was excepted to and excluded from the jury, on the ground, it must be presumed, that as the book was only evidence in support of Anthony’s pretended set-off, and that set-off had not been properly pleaded so as to be in issue, the book of accounts was irrelevant. But, as we hold that the set-off was sufficiently pleaded, we must hold that the book of accounts was improperly excluded.-

Most clearly, Anthony was a competent witness to prove that the book offered in evidence was his book of original entries ; and the book thus authenticated was competent evidence for the jury, who, having it before them for examination, might judge of the weight it was entitled to from all the circumstances relating *221to it, such as the manner in which it appeared to have been kept, &c.

XY. Certain lawyers having testified as to the value of the legal services rendered by the plaintiffs, the court instructed the jury that “ Such witnesses are supposed to be better qualified to put a value upon such services than the jury, none' of whom may have any personal knowledge of the nature of the business in which they have been performed. 8uch testimony is the guide of the jury in finding the amount justly due, and in this case you must take the testimony of these witnesses, and bé governed by it, in finding the value of the services rendered by Stinson & Hurd.”

We do not so understand the law of jury trials. It is not for the court to instruct the jury as to what part of the testimony before them shall control their verdict, but the jury must weigh all the testimony before them, decide as to its credibility, and as to the weight which should be given to it in making up the verdict. The testimony of experts or professional witnesses is often ■very important, and justly entitled to great weight in a cause; but it must have its legitimate influence by enlightening, convincing and governing the judgment of the jury, and must be of such a character as to outweigh, by its intrinsic force and probability, all conflicting testimony. The jury cannot be required by the court to accept, as matter of law, the conclusions of the witnesses instead of their own; and we think the court below erred in this part of its charge. Nor was this error cured when, upon the request of the defendant’s counsel, that the court should instruct the jury “that they should not be governed alone by the evidence of the witnesses offered, to prove the value of the services, but that they should also take into consider*222ation all the circumstances of the case, and all the surroundings, such as the character of the cases in which they were performed, the time employed,” &c., the court responded that all the circumstances were before the jury, and were to be considered by them ; and that, in the instructions given the jury, it was only intended to charge them that, in finding the value of the services rendered, they must not consider their judgment tetter than the judgment of the witnesses who had testified as to their value.

This language seems to be a repetition in substance of the former charge which we have commented on as objectionable. Its obvious import is that the jury are to pay particular and special deference to the statements of the legal gentlemen who gave testimony as to the value of the legal services, or, in effect, to accept the conclusions of those gentlemen as their own. It substitutes the judgment of the witnesses for the judgment of the individual jurors ; while the true theory of jury trials regards the opinion of such witnesses as facts, to be considered and weighed like other facts and circumstances of the case. Thus, if attorney A. testified that the services rendered were, in his judgment, worth $1,000, and attorney B. swore he considered them worth only $50, while it appeared, from other testimony, that the services required but a moderate expenditure of time and effort, we think that an unprofessional juryman should take the fact that lawyers A. and B. swore as they did, and compare that fact with the time spent and the other circumstances proved, tending to fix the value, and make up his own judgment.

But under the instructions given in this case, jurors would not have felt themselves at liberty, we apprehend, to do this, and consequently, in rendering their *223verdict, they may be regarded as registering the opinion of the professional witnesses rather than their own.

Judgment reversed.

All the justices concurring.