Cosgrove v. Burton

104 Mo. App. 698 | Mo. Ct. App. | 1904

BROADDUS, J.

Benjamin E. Nance of Howard county died 'on or about the 22nd of May, 1902, leaving two children, Laura Burton and Martha E. Jordan. By his last will he left the greater part of his estate to Laura and Benjamin N. Burton; but prior to making his will he had conveyed to the said Burton 600 acres of land. Afer the probate of her father’s will, Martha E. Jordan brought suit to set it aside and also brought suit to annul the said deed of conveyance. The plaintiff, a counsellor and attorney at law, was employed by the defendants to represent their interests in said suits. Benjamin Burton was the. executor under the will of said Nance and the defendant Patrick H. Burton is the husband of said Laura. It was also a part of plaintiff’s employment to recover from one Dr. R. S. Holman two thousand dollars which it is claimed he had fraudulently obtained from the said Nance in his lifetime.

The petition alleges that the contract of employment between plaintiff and defendant was as follows: “Benjamin N. Burton, acting for himself and the other -defendants herein, promised and agreed to pay the plaintiff for his services in and about procuring the return of said two thousand dollars from said Holman, and for Ms counsel and services rendered, and to be rendered, in said two above mentioned suits, the sum of five hundred dollars in the event the said'Martha E. Jordan prevailed and the said Patrick H. Burton, Laura Burton and Benj. N. Burton and others were defeated therein, and in the event said suits of Martha E. J ordan against the defendants herein, and others, were decided in. defendants’ favor, the sum often per cent of the amount and value of the estate involved in said litigation. ’ ’

It was shown that plaintiff acted as counsellor and attorney for defendants in said matters; that his services were reasonably worth one thousand dollars; and that the value of the estate involved was from $35,000 to $40,000; and that Dr. Holman returned to the executor the said $2,000. In the suit to set aside the will the defendants obtained a judgment establishing it; but it was proved that it was in the nature of a compromise the consideration for which was the sum of $5,000 paid by defendants to the said Martha E. Jordan. The suit to annul the said deed was dismissed at the cost of defendants.

The jury returned a verdict for plaintiff for $1,000.

It is the contention of defendants that as plaintiff’s cause of action was on a contract he was not entitled to recover -on quantum meruit; and that under his contract he was entitled to recover only $500 as the defendants did not prevail- in said two suits. As to the latter contention, if the contract is to receive a strict construction, plaintiff would have been entitled to recover an amount equal to ten per cent on the value of the property in litigation, which would amount to at least $3,500. But defendants say that as a matter of fact, although the judgments a.re formally in their favor, it was the result of compromise for which they paid in the one case $5,000, and in the other the costs of the suit. But defendants have left out of consideration the fact that the compromise in question was made over the objections of plaintiff. There is no doubt but what defendants had the right to do so, but it does not follow that because they did it would affect the contract they had with the plaintiff and they would still be liable to him thereunder for an amount equal to ten per cent of the value of the property in dispute as both the will and deed were sustained.

The petition after setting out the contract and alleging plaintiff’s compliance with its terms, defendant’s success in the two suits, further states that he voluntarily reduced his fee to $1,000, which defendants agreed to settle and that the sum charged is a reasonable compensation for his services. The petition admits of two constructions: The plaintiff contends that it was for quantum meruit; defendant that it is a suit on contract. We believe- the petition, fairly construed, makes the cause of action stated quantum meruit. The statement therein that he had voluntarily reduced his fee to $1,000 for his services, their reasonable value, and that the defendants were justly indebted to him for that sum, characterizes it as such. It nowhere alleges that the amount is due upon his contract or that the defendants have committed any breach thereof, nor has he asked to recover thereon. The most that can be said of'the petition is that it is ambiguous. But it is sufficient to support a verdict. Notwithstanding defendants during the the trial insisted that the action was on contract, by a number of instructions they submitted .their side of the case upon plaintiff’s theory that the action was one for a reasonable compensation for plaintiff’s services. Perhaps they were justified in so doing, taking into consideration the dubious character of the pleadings •and their insistence until the last moment that the action was based upon contract.

The petition being sufficient upon which to base a verdict and judgment renders it unnecessary to notice many of the objections made to testimony introduced by plaintiff.

It is claimed that the court erred in giving the following instruction. “The court instructs the jury that they are not bound by the testimony of the expert witnesses but in considering such testimony the professional standing and experience of such witnesses must be taken into consideration in arriving at a verdict.” The objection is to that part of the instruction which tells the jury that they must take into consideration the professional standing and experience of such witness. In Hoyberg v. Henske, 153 Mo. 63, it was held “Juries are in nowise bound to accept the opinions of expert witnesses if they deem them unreasonable, and an instruction in a civil action which so states is not error. ’ ’ In Cosgrove v. Leonard, 134 Mo. 419, the verdict was founded wholly as to the value of plaintiff’s services upon the testimony of expert witnesses. The court held it was sufficient to support a verdict.

In Hull v. St. Louis, 138 Mo. 625, which followed the holding of the court in St. Louis v. Ranken, 95 Mo. 189, it was held proper to instruct the jury to give to the opinions of expert witnesses the weight to which they believed they were entitled. It is the opinion of some jurist that an instruction that calls attention to this testimony of witnesses as a class ought never to be given. But as such is now the law, and as juries may believe or disbelieve them at their own will, it certainly would be appropriate for them to take into consideration their professional standing and experience. The trial court ought, at least in an advisory capacity, be authorized to lay down some rule for the guidance of the jury in passing upon the credibility of such witnesses. And if the opinions of such witnesses are sufficient, as held in Cosgrove v. Leonard, supra, to support a verdict it was certainly not error to instruct the jury that in making up their verdict they must take into consideration their standing and experience in their profession. In fact, it is the duty of jurors in all cases not only to take into consideration the credibility of witnesses, but also every other circumstance tending to weaken or strengthen their testimony. And as the law is that the courts are authorized to instruct juries that they may disregard the evidence of expert witnesses, there can be no good reason assigned why jurors should be left without any direction whatever in weighing the force of such evidence. Other objections made to instructions are without merit. The cause is affirmed.

All concur.