70 Mo. App. 242 | Mo. Ct. App. | 1897
The petition in this case contained twelve counts. The first eleven were for the value of legal services, rendered by James Carr, in his lifetime, for the defendant, in the prosecution and defense of various lawsuits, to which defendant was a party. The twelfth count was for alleged services rendered by James A. Carr, an attorney at law’, for defendant, upon an express contract between defendant and James Carr, by which it is alleged, defendant agreed to pay . the value of such services to James Carr.
The answer was a traverse of the twelfth count. Defendant admitted the employment of James Carr,
As a counterclaim, defendant alleged in substance that he employed James Carr to defend a suit, brought against himself and sureties on his bond as administrator cle bonis non of the partnership estate of G-lover & Shepley, against which he had a complete defense on the merits. That he advised Carr fully of this defense, but that Carr, by his negligence, failed to embrace this defense in his answer to the suit, although advised by defendant to do so. That Carr filed a plea to the jurisdiction of the court, but failed to join with it a plea- in bar, or to the merits; that this plea to the jurisdiction was ruled against him; that he was denied and deprived of the privilege to answer over to the merits. Default was taken and damages assessed. By reason of all this, defendant says, Carr, by his negligence and want of skill, damaged him in the sum of $2,500, for which he asked judgment.
The issues in this case, by consent, were referred to a referee, who found for plaintiff upon all of the twelve counts and denied the defendant’s counterclaim. Upon this report coming in, defendant filed a motion to set it aside, for various reasons, not necessary to notice in detail. The exceptions to the findings of the referee on the first, second, third, fourth, fifth, sixth, seventh, ninth, and tenth counts of plaintiff’s petition were overruled. The exceptions to the eighth, eleventh, and twelfth counts of the petition and defendant’s counterclaim were sustained. Prom this order, sustaining in part the defendant’s motion to set aside report of the referee, the plaintiff duly appealed.
By written opinion, filed by the learned trial judge, we are advised of the legal propositions, by which he was controlled in his rulings on the motion. That
“A lawyer is not liable in damages to his client for a mere error in judgment on a legal proposition concerning which enlightened legal minds may fairly differ. But the same degree of diligence is required of a lawyer that is required of other men employed to render services of a technical or scientific character; and if the error is such as to evince negligence he is liable.
“In the case at bar the alleged negligence consisted in failing to plead to the merits of a cause at the same time a plea in abatement was filed, in consequence of which when the plea in abatement was overruled the defendant was unable to present his defense on the merits; the defendant alleging that he had a defense on the merits of which his lawyer was informed and which is set forth in the counterclaim.
“Under the common law a plea to the merits waived all matter in abatement and the two pleas could not stand together. But' at the time the answer complained of in this Case was filed the law was well settled in this state that the answer to a suit must contain all the defenses that were to be made, whether in abatement or to the merits or both. And this had been the declared rule of pleading by our supreme court long enough for every lawyer by the exercise of reasonable diligence to have known it.
“The learned referee who tried this cause found against the defendant on this counterclaim on the ground that the defendant being himself a lawyer ‘the question of pleading in abatement without inserting a plea in bar or to the merits was fully discussed by James Carr and the defendant; and that such plea was filed with the acquiescence of the defendant, * * *
“The correspondence between Mr. Carr and Mr. Glover on this subject is set forth in the evidence. It shows substantially that the subject was discussed, that the plea in abatement as prepared by Mr. Carr was forwarded by him in a letter, to Mr. Glover who made some change in the form of it and returned it to Mr. Carr, saying that as to that change he (G) would take the responsibility. The change was only as to the form of pleading the matter in abatement, and not in reference to the question of pleading to the merits. On the proposition of omitting to plead to the merits Mr. Glover expressed apprehension. Mr. Carr expressed doubt; but advised that the plea to the merits be omitted and it was done as he advised and Mr. Glover acquiesced. When the cause came on for trial Mr. Glover was present and assisting and he also had other counsel assisting, and no application to amend the pleadings was made at the trial; a plea to the jurisdiction and the plea in abatement were overruled, an application for leave to plead to the merits was then made but denied by the court and the cause was sent to a referee to assess the plaintiff’s damages.
“The acquiescence of Mr. Glover in the filing of the plea, his presence at the trial and going to trial without asking leave to amend, are the grounds on which the referee bases his finding against the defendant on his counterclaim.
“I cannot agree with the referee in that conclusion as a matter of law. If the defendant had not been himself a lawyer it would perhaps have never occurred to anyone that his acquiescence in the matter affected the question. But what difference does it make that
‘ ‘As the issues joined on eighth and eleventh counts of the petition involve matters so closely related to those involved in the issues joined in the counterclaim, the findings of the referee in those two counts should not stand while his finding on the counterclaim is set aside.
“The contract pleaded in the twelfth count of the petition is a peculiar one. It is an express agreement whereby prior to the rendering of any services of James A. Carr to defendant, James Carr and defendant made and entered into an agreement whereby James Carr promised to procure the services of James A. Carr to be rendered to defendant and defendant promised James Carr to pay him the value of the services so to be rendered by James A. Carr as well as the value of his, James Carr’s, own services.
“There is no evidence to prove that such a contract was ever made and nothing from which it could be implied. No witness pretended to have heard any such
As a general proposition, the statement of the law, of the relation between client and attorney, by the learned judge is correct. Like all other general rules of law, however, it has its exceptions, founded in a modification or 'change of the relations themselves. Glover, when the suit was brought on his administrator’s bond, and during the pendency of the suit, was in New York city and Washington city, and he and Carr communicated with each other through the mails. An examination of the correspondence between Carr and Glover leads us to the conclusion that the rule of law, as stated by the trial court, has no' application to the facts in 'this case. The first plea filed by Carr was for Glover alone. The suit was subsequently dismissed as to Glover; hence this first plea cuts no figure in this case. •
ported by substantial evidence, must stand, Lingenfelder v. Wainwright Brew. Co., 103 Mo. 575; Gambell v. Gibson, 75 Mo. 326; Bissell v. Hill, 10 Mo. App. 59$¿ri That it is abundantly supL ported will be seen from what has been said. It follows that the order of the circuit court sustaining the motion to set aside the report, so far as the same relates to finding of referee, on issues joined on the eighth and eleventh counts of the petition, and defendant’s counterclaim is reversed, and the lower court is ordered to overrule said motion as to the eighth and eleventh counts of plaintiff’s petition, and to defendant’s counterclaim. The evidence wholly failed to support the finding of the referee on the twelfth count of the petition, and the order of the trial court setting aside the report of the referee on this count is affirmed.