Baldwin v. Silver, 193 P. 750

Baldwin v. Silver

193 P. 750 | Mont. | 1920

MR. JUSTICE MATTHEWS

delivered the .opinion of the court.

The complaint herein sets up ten causes of action; of these nine "are based on implied contracts for the reasonable value of plaintiff’s services rendered as an attorney at law, the second being for the sum of $4.50 paid out as costs.

The defendant interposed a general denial to the second, ninth and tenth causes of action, and admitted the allegations of the eighth; as to the first, fourth and fifth, he admitted that the services were rendered, denied that the amount claimed was the reasonable value of such services or that they were rendered under an implied contract, and alleged affirmatively that such services were rendered under express contracts fixing the amount of the fee. As to the sixth and seventh causes of action, defendant admitted the services rendered and alleged payment. He alleged that, in the action *498mentioned in the third cause of action, the services were rendered under an express contract for a contingent fee. The answer then alleges, as a counterclaim, that plaintiff collected the sum of $925.40 on a certain judgment and refused to turn over the sum of $223.25, though demand was made upon him, and that he was entitled to withhold but $50, under the express contract existing, whereby plaintiff was to atten,d to all cases defendant might have in the district court, at $50 for each case; and, as a second counterclaim, the answer alleges that plaintiff secured possession of certain certificates of stock of' the value of $459.20, which he refused to turn over to defendant on demand.

Replying to the first counterclaim, plaintiff alleged that the reasonable value of his services was $200, and that the sum of $23.25 was expended in - necessary costs and disbursements in the action, and to the second interposed a general denial. The total amount claimed by the plaintiff was $640; the amount of the counterclaim, $632.45. The case was tried to a jury and resulted in a general verdict and judgment for the plaintiff in the sum of $450. From- this judgment defendant appeals.

1. The first specification of error'is based on the court’s [1] action in admitting in evidence the remittitur from the supreme court in an action wherein the plaintiff sought to recover for services rendered, after the cause was sent back to the district court. While it is true that plaintiff was not seeking to recover for any services in the supreme court, the plaintiff testified, without objection, that the cause was sent back, and to the services rendered in conformity with the direction of the supreme court. The remittitur was, doubtless, admissible- for the purpose of showing the necessity for further services rendered; but, even if immaterial, its introduction could not be, in the light of the record on the subject, prejudicial to the defendant.

'2. Defendant complains of the court’s refusal to strike the [2] answer of the witness Lamb to a question propounded *499on cross-examination, as not responsive to the question. Considered in connection with the immediately preceding questions and answers, we are inclined to the belief that the entire answer was responsive; but, whether it was or not, as a whole, the major portion of the answer was certainly responsive to the question. The motion to strike does not point out to which portion of the answer it is directed, and the court cannot be put in error for ruling as it did on such a motion.

3. The third and fourth assignments will be considered [3,4] jointly. The defendant contended that the services alleged were rendered pursuant to an express agreement that plaintiff should handle all district court cases for $50 each. In his defense he testified that “He attended to all my business and I paid him at the rate of $50 in the district court and $10 in the justice court, never one cent more. ’ ’ And again: “Fifty dollars is all I paid him in all cases, and $10 in the justice court, never more or less.” -In rebuttal, plaintiff introduced an account rendered to and received by defendant, showing charges of more than $50 for cases in the district court. This was objected to as “a self-serving declaration.” The account showed credits amounting to a payment of the charges so made, and, in this respect, contradicted the testimony of the defendant. Had there been no settlement—of which there is some question in the record—the retention of the statement for an unreasonable length of time without objection is evidence of assent to its correctness. (O’Hanlon Co. v. Jess, ante, p. 415, 193 Pac. 65.) The ruling of the court was clearly correct.

The defendant offered, in surrebuttal, to prove that, in every [5] case tried in the district court, the plaintiff received the sum of $50, and no other sum, as a fee for his services. This offer was rejected by the court, as repetition, and defendant contends that the rejection constitutes error. In the light of the testimony of the defendant quoted above, the court was right in so ruling. (Cannon v. Lewis, 18 Mont. 402, 45 Pac. 572.)

4. The remaining assignments are directed to the giving [6] and refusal of instructions. Defendant offered three in*500struetions, similar in purport, covering the three causes of action in which the defense of an express contract was interposed. The court modified the first of these, which opened with the clause, “With reference to the first cause of action,” etc., by striking the word “first” and adding the letter “s” to the word “cause.” Defendant insists that error was committed in giving the modified instruction and in refusing thereafter to give the later instructions on the same subject; that the instruction as modified was directed to the issue under each and all of the causes of action and' manifestly did not apply to other than the four in which the question of an implied or express contract was raised. The instruction correctly advised the jury as to those causes of action to which it did properly apply, and the jury could readily understand that it was not intended to apply to other than those causes of action; the remaining questions were so simple as to need no instruction for the guidance of the jury. While the instruction may' not have been technically accurate, it could not have misled the jury. The action of the court in thus reducing the number of instructions given in so simple a case is to be commended, and we find no reversible error in connection with its action on these four instructions.

5. Error is predicated on the court’s refusal to give a [7] number of instructions on the subject of conversion in connection with defendant’s counterclaims. It will be noted that conversion is not charged directly in either of the counterclaims. The court evidently disregarded the question of conversion and treated the counterclaims as seeking to recover for moneys had and received, and fully advised the jury as to defendant’s right to recover under his counterclaims, in the event it accepted the defendant’s version of the transactions.

We find no reversible error in the record, and the judgment of the district court of Silver Bow county is therefore affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.