Calvert v. Coxe

1 Gill 95 | Md. | 1843

Lead Opinion

Archer, J.,

delivered the opinion of this court.

I am directed by the court to say that they approve of the opinion expressed by Judge Dorsey on all the exceptions in this case, except on the third and fifth exceptions of the appellant.

I am further directed by a majority of the court on the third exception, to say that they think the court below were right in the opinion by them expressed in this exception.

This court has, heretofore decided, that facts proved on a former trial by a deceased witness are admissible on a second trial of the same case. They would only be rejected on the presumption, that facts were proven on the first trial which were inadmissible as evidence. This we think we cannot intend; but the reasonable presumption is, that such facts were alone proved as were admissible, and it was proper the court should act on this presumption, upon the offer of the evidence, until the contrary appeared.

On the fifth exception the court are divided. Those of us who maintain that the evidence offered as to what sum was paid to Mr. Johnson was inadmissible, think that what was paid to or demanded by one attorney, was not evidence in the cause. We cannot judicially know the standing of any one member of the bar, or the circumstances under which he was paid, or demanded a given sum for his services. What is the usual and customary compensation for services of the like kind is admissible testimony, but what was paid to any particular individual, standing per se, is in our opinion inadmissible.

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Concurrence Opinion

Dorsey, J.,

delivered the following opinion:

Differing in opinion with a majority of the court on some of the bills of exceptions, I proceed to state my own views of this case.

Whether the court below erred or not, in rejecting the testimony taken under the first commission issued in this cause, is a question not before us for decision, on the present appeal.

Our first inquiry is, was there error in the county court’s admitting the testimony under the second commission, to go to the jury ? For its rejection various reasons have been assigned ; as well in respect to the time and manner of its issue, as of its execution. It is asserted in the argument for the appellant that it was ordered on the same day that it was applied for; and that no opportunity was given to the appellant to name and strike commissioners. If this assertion be true, it does not satisfactorily appear to me by the record before us. The proof of what transpired in the court below in relation to the issuing of the second commission is not presented to us, as it is in relation to the first. In regard to the latter, it was proved by competent testimony, that it was applied for by the plaintiff on the 17th of October, 1838, and that on the same day it was ordered to four commissioners named by the plaintiff'. But as to the second commission; of the day on which it was applied for; of the number of days which intervened between such application and the naming of commissioners by the plaintiff; and the order for the issuing of the commission, the record furnishes us no definite information. All that we can there learn upon the subject is, that Prince George’s county court sat on the first Monday of April, 1839. That the return to the first commission was made to it at that term; and that a jury was then sworn, and a juror withdrawn; and “whereupon” it was “ordered by the court, on motion of the plaintiff by his counsel, that commission issue to take depositions in this cause, directed to Joseph II. Bradley, Philip R. Fendall, James M. Carlisle and James Hoban, Esquires, of the District of Columbia, which said commission accordingly issues to the said commissioners, as ordered by the court.” Thereupon, &c., the cause was continued. Whether these commissioners were exclusively named by the appellee, or •were constituted by both parties having exercised the right of striking, the record gives no means of ascertaining. Nor' does the order of the judge upon the subject, furnish any definitive evidence upon this question. After giving the titling of the cause, it is in these words: “Commissioners in the case, Joseph H. Bradley, Philip R. Fendall, James M. Carlisle and James Hoban, of the District of Columbia. Let the commission issue as prayed, May 27th 1839.” From the length of time which elapsed between the commencement of the term and the date of the judge’s order, in the absence of all proof to the contrary, it is fair to presume either that the appellant did name and strike commissioners, or that after reasonable notice he failed to do so, and the phraseology of the order rather repels than sanctions the presumption, that, as soon as the motion was made, the commission was directed to issue' to the commissioners named by the appellee. Had such been the action of the court, their order, instead of assuming the' shape it did, would have been couched in language like the following: “on motion of the plaintiff ordered, that commission issue to the commissioners by him named.” The motion of a suitor seeking a commission to take testimony, is not that a commission issue for that purpose to A, B, C and D, but that a commission issue to take testimony; naming the place to which he wishes it to be addressed. Whereupon the court gives the usual order for naming and striking commissioners. How long this motion was made before the court’s-order of the 27th of May, does not appear; but in the absence of all proof to the contrary, judicial courtesy requires' us to presume, that in issuing this commission the county court discharged its duty according to its rules and practice regulating the exercise of such authority. And in this pre~ sumption we are fortified by the fact, that no proof was offered of the non-conformity of the court in this respect, as was attempted to be shown as regards the first commission. Neither does it appear that at the trial below it was made a distinct ground of objection to the testimony under the second commission, as it was to the first; that “the said commission issued to commissioners named exclusively by the plaintiff, without allowing time to the defendant to name any on his part.” As far as this objection is concerned, therefore, I think the county court did not err in permitting the testimony under the second commission to go to the jury.

The next objection to the evidence in question is, that it was executed in the State of Virginia, in which the commissioners had no authority to act. And in support of this objection the cases of Bondereau and al vs. Montgomery and al, 4 Wash. C. C. R. 186, and Lessee of Rhoades and Snyder vs. Selin and al 4 Wash. C. C. R. 715, have been relied on. But those cases are not analagous to that now before this court. There by the terms of the commissions they were to be executed at design nated places; and having been executed elsewhere, they were suppressed by the court. In the commission under consideration, there is no designation of the place of its execution. The power of selecting it is confided to the sound discretion of the commissioners, and of its exercise on this occasion, the appellant has no right to complain. That the commission was executed at a private house, detracts nothing from its validity. And in my opinion it does sufficiently appear to have been executed at the time and place mentioned in the notice. In .answer to the fifth objection, that “the time allowed by the notice was too short,” it has been urged, that this being a foreign commission, no notice to the parties of the time and place of its execution was requisite. And in support of this doctrine, the cases of Owings vs. Norwood, 2 Harr. & John. 99, and Law vs. Scott, 5 H. & J. 438, have been cited; and I think fully sustain it. In the former of these cases the court decided that “in executing foreign commissions, notice is not necessary; but time should be given, that the opposite party might exhibit cross interrogatories:55 and in the latter it is fully settled that, in executing foreign commissions, no notice of the time and place of so doing need be given to the parties to the suit. All the notice required is, that of the interrogatories sent out with the commisssion; actual or constructive notice should be given to the opposite party, in time for him to exhibit cross interrogatories before the transmission of the commission. It is true that it is not perfectly obvious that the opinion of the learned judge who decided the case of Boreing vs. Singery, is in perfect harmony with the above recited extract from the opinion of the same judge, delivered in the case of Owings vs. Norwood. In Boreing vs. Singery, the defendant offered in evidence a commission issued at his instance, the return to which, “after setting forth the meeting of the commissioners, and their having taken the deposition of a witness in answer to certain interrogatories,55 concludes by the commissioners certifying that “the foregoing interrogatories were taken at the instance of Joshua Stevenson, on his asserting that the plaintiff had knowledge of his coming and intention of having this commission executed.55 In support of this statement made to the commissioners, no evidence was offered, and it would appear from the report of the case that no interrogatories were filed and sent with the commission; nor any notice given the plaintiff of the interrogatories propounded to the witness; nor was time or opportunity afforded him of filing cross interrogatories; nor any notice given him of the time and place of executing the commission. Upon the objection being raised to the admissibility of the deposition taken, on the ground that legal notice had not been given to the plaintiff of the time of executing the commission, the learned judge, above referred to, who delivered the opinion of the court below, said, “this case is not similar to the case of Norwood vs. Owings. In that case the commissioners certified that they had given notice; but in this case it does not appear, by the return of the commissioners, that they had given any notice, or that proper notice had been given. The court are of opinion, that the commission and return are not legal evidence.55 That the court were right in rejecting the testimony offered, is too obvious to admit of discussion. It was affirmed on appeal to this court. It is true the learned judge was mistaken as to a fact which he stated in reference to the case of Norwood vs. Owings, viz: that “the commissioners certified that they had given notice.” The return of the commissioners certified no such fact. But in that case the defendant, on whose behalf the commission issued, filed in court his interrogatories, (a copy of which wms annexed to the commission,) and ample opportunity was given to the plaintiff to have filed cross interrogatories. In the interpretation given by the counsel of the appellee to the opinion of the learned judge in Boreing and Singery, he is perhaps misunderstood. He did not mean, as is imputed to him, to impugn the principle, so distinctly announced by him in the case of Owings vs. Norwood, in reference to the execution of foreign commissions; but speaking in reference to the commission before him, where no notice of the interrogatories, or opportunity to exhibit cross interrogatories had been given to the plaintiff; he, in rejecting the testimony, says, “but in this case it does not appear, by the return of the commissioners, that they had given any notice, or that proper notice had been given;” thus it maybe inferred, confirming and extending, rather than overruling the doctrine he had so emphatically laid down in Norwood vs. Owings, to which he most probably alluded in his alternative reason assigned, “or that proper notice had been given.”

In the case before us, however, notice of the time, place, &c», of executing the commission was given by the commissioners to the appellant; and .1 do not regard the shortness of the time complained of an adequate ground for suppressing the testimony taken under the commission. In the appellant’s first exception, therefore, I see no ground for reversing the judgment of the county court, rendered in the case before us.

On the second bill of exceptions, I think the county court erred. Having permitted a witness to state the contents or effect and operation of a written instrument, without producing it, notwithstanding the appellant’s objection to the admissibility of the testimony. The testimony, thus given, might have had a material influence on the minds of the jury in forming their verdict.

I cannot consent to affirm the act of the county court in admitting, under the circumstances in which it was done, the witness to give evidence of what facts w,ere proved by a certain Benjamin S. Forrest, a deceased witness, examined in a former trial of this cause. The testimony being objected to, before the court could determine that it was admissible, it must be satisfied that it was not immaterial and irrelevant to the issue in the cause, of which it was wholly incompetent to judge, without a statement of the facts of which the proof was offered. The objection being overruled, and the evidence admitted without any such statement, I do not see how this court can determine that it was admissible, without knowing what it was. When testimony is objected to, before it can be submitted to the jury, the party offering it, must show its competency, or it must be made appear to the court that it is not immaterial or irrelevant. His obligation to do so, is in nowise changed, by proof of the fact, that it was given in evidence to a jury in a former trial of the same cause between the same parties. Reasons, almost without number, may be assigned, why a party not objecting to incompetent testimony on a first trial, should prefer his objections on the second. His omission or waiver of his rights in a first trial, do not impair or restrain his exertion of them in the second. A principle of striking analogy to that now in question, was decided by the Court of Appeals in the case of Ragan vs. Gaither, 11 Gill & John. 472, where the judgment of the county court was reversed, because two deeds referred to in the bill of exceptions were not inserted at length, that the court might judge of their legal effect and operation. By admitting the testimony offered to go to the jury, the court in fact decide that the facts offered to be proved, were pertinent and material to the issue, without the semblance of any knowledge of what the facts were.

I see no sufficient ground for the reversal of the judgment of the county court, either for its refusal to give the defendant’s instructions as prayed, or for the giving of the court’s instructions as set forth in the defendant’s fourth bill of exceptions. Notwithstanding the facts put to the finding of the jury by the appellant’s first instruction in this bill of exceptions, the jury were not bound to find for the appellant. If the appellant’s intestate did contract with the appellee to pay him for his services out of the estate of Thomas Cramphin, in the intestate’s hands, and failed to do so, his contract was broken; he was personally bound for its performance, and the present action, for the breach thereof, might well be sustained against the appellant, his personal representative. So also as to the second instruction prayed for by the appellant; although the $2,000 paid to the appellee, was, according to the contract between the parties, to have been paid upon the contingency of the final decision of the cause in favor of the will of Thomas Cramphin, yet the jury were not thereby bound to find a verdict for the defendant, because there was other evidence before the jury legally sufficient to warrant them in finding that, by an additional or subsequent agreement between the parties, the appellant’s intestate promised to pay to the appellee a further compensation for the services rendered, or a portion thereof. With the two instructions given by the court to the jury in ibis exception, I see nothing of which the appellant has such ground of complaint as would require of this court the reversal of the judgment.

I cannot concur with the county court in the rejection of the testimony offered by the appellant in his fifth bill of exceptions. No contract for a stipulated compensation for the services rendered having been proved, the appellee’s right to recover was upon the ground of a quantum meruit. The estimate which the jury, by their verdict, should place on the services for which compensation was sought, was the price at which like services, by counsel of the same eminence, are ordinarily obtained. How then can the value of such services be ascertained so satisfactorily, as by proving what the same party or other persons paid for similar services. Suppose that a witness were produced, who proved that the ordinary compensation allowed to such counsel for such services was a specified sum by him stated. Upon what knowledge of facts must his statement, to be evidence at all,--be necessarily founded? Why that A, B, C and D, &c., under like circumstances for like services paid, or were required to pay, that, or nearly that sum of money. If then it be admissible to show what others paid, under similar circumstances, is it not competent for the appellant to prove the sum paid by him for services identical, and in the same cause, to other counsel, who, for aught that appears in the record before us, may have been of equal professional ability and eminence with the appellee himself. Indeed the circumstances under which the proffered witness was enlisted in the cause, repel the idea of his great professional inferiority to the appellee, with whom he was associated solely for the purpose of trying the case in the court of last resort. It is not the usage of clients, on such occasions, to call in as associate counsel, a member of the bar of inferior standing to him who tried the cause in the court below. But^if contrary to this usage, the appellant’s testator had done so, it was competent for the appellee to have shown it by evidence before the jury.

It has, however, been insisted, that the charges of lawyers are so wholly dissimilar in amount; the value of their services so disproportionate, that the mode suggested of ascertaining the value of their services, is wholly inapplicable. If this be true, the same may be predicated, in a greater or less degree, of all other professions, arts and trades. What other measure of value can you in reason and justice apply to services rendered by counsellors at law, It will not, I presume, be contended, that where no contract for specific compensation has been entered into, the client is bound to pay whatever charge his counsel may see fit to make for his services. When the common law of England, in relation to the fees of counsellors at law, was determined to be inapplicable to the State of Maryland, and that in a quantum meruit they might recover for professional services rendered; that decision necessarily drew with it the standard I have mentioned, for the ascertain-merit of the value of such services. The materiality and relevancy of the testimony offered, was too obvious to require from the counsel an assurance to the court that it would so appear in the progress of the cause.

I concur with the county court in their refusal of the defendant’s prayer for an instruction to the jury, which forms the basis of his sixth bill of exceptions. Although the jury might find that by the terms of the contract the appellee was bound to prosecute, to a successful issue, the controversy then pending in the orphans court of Montgomery county, and that the contingent fee of two thousand dollars had been paid to him; yet the county court were not authorised to instruct the jury, that the appellee was not entitled to claim any further compensation for his services proved to have been rendered as aforesaid in the Court of Appeals; because in doing so, the instruction would have excluded, from the consideration of the jury, all the testimony offered by the appellee, to show that the appellant’s intestate had promised to make the appellee an additional compensation for his services, besides the contingent fee of two thousand dollars, of which there was testimony offered, legally sufficient to have been left to the jury; and from which the jury might have found the existence of such agreement for additional compensation, if they regarded the testimony sufficient, in point of fact, for that purpose. Such an exclusion of evidence would have been an unwarrantable invasion of the province of the jury, which the court below very properly refused to perpetrate.

To the granting of the plaintiff’s prayer, for an instruction to the jury, as it stood in the defendant’s seventh bill of exceptions, unmodified by either of the parties, I can see no reasonable ground for objection. And the defendant cannot assign for error, the results of any of his own modifications or additions to the prayer of the plaintiff. If there be error then, for which the judgment should be reversed, it must be found in the additions made by the plaintiff to the instruction as modified and amended at the defendant’s instance. And in the adoption of each of those additions I think there is such error as calls for the reversal of the judgment before us. The first of these additions, (if not so in express terms, would in all probability, have been so understood by the jury,) called on the court to say that for all services performed by the plaintiff, at the instance of the appellant’s intestate, in consequence of the act of 1832, granting an appeal from the trial of the issues in Montgomery county court to the Court of Appeals, he was entitled to recover of the appellant a reasonable compensation in addition to the contingent fee of two thousand dollars This addition to the defendant’s modification might with propriety have been hypothetically granted by the court to the jury; that is the jury might have been instructed that such was the law, provided they found, as contended for by the appellee, that by the contract between the parties, the contingent fee of two thousand dollars was to have been paid him for his successful trial of the issues then pending in Montgomery county court. But suppose the jury had been of opinion, as I have said they had the power to be, that the appellant’s version of the contract was the true one; and that the two thousand dollars was only to have been paid upon the successful termination of the controversy about the will, and the appellant’s intestate being put into possession of Cramphin’s estate; could the court then have instructed the jury as required by this first addition to the defendant’s modification of the plaintiff’s prayer? unquestionbly not.

In the grant of the instruction asked for in the plaintiff’s second or further addition to the instruction to be given to the jury, the court undertook to decide a matter of fact, which the jury only were competent to determine. The county court, as called on to do by the plaintiff, determined that the motion for a new trial was decided or disposed of by the court, before an appeal was taken to the Court of Appeals. Of this fact, no record evidence was offered; but the proof was wholly oral; of the credit due to which the jury only were competent to judge. In withdrawing from the jury the right to judge of the credibility of the witnesses and the truth of their statements, I think the county court erred.

I concur with the county court on the appellant’s first, fourth and sixth bills of exceptions, but dissenting on the second, third, fifth and seventh, I think, its judgment should be reversed and a procedendo awarded.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.