Davis v. Walker & Walker

125 Ala. 325 | Ala. | 1899

McCLELLAN, C. J.

This action is prosecuted by R. H. Walker and F. H. Walker, -partners engaged in the practice of law under the firm name of Walker & Walker. The complaint contains three counts, each claiming six hundred and fifty dollars for professional services rendered the defendant, M. J. Davis. The first count sets forth in a general way what services were rendered, and avers that defendant promised to pay a reasonable fee therefor and that the amount claimed is such reasonable fee. The second count claims a like sum -as due by account for professional services rendered. And the third count is in the following words: “The plaintiffs claim of the defendant the further -sum of six hundred and fifty dollars for services rendered her by R. H. Walker as-her attorney in defending the defendant and her rights in a suit brought by the creditors of her husband, J. P. Williams & Company v. R. M. Davis, Mattie J. Davis and A. M. Gore in the United States Circuit Court for the Middle District of Alabama at Montgomery. -Plaintiffs aver that the defendant employed R. H. Walker to so represent her as her attorney, promising therefor to pay a reasonable fee for the services rendered. Plaintiffs aver that for the sendees rendered six hundred and fifty dollars is a reasonable fee, aud that R. H. Walker being a partner in plaintiffs-' firm the account is their property and is due and unpaid.” Of course the claim thus stated was the property of the partnership and suit thereon w-as properly brought in behalf of the members of the.firm; and, there being no verified plea denying the.existence of the partnership- it was not necessary for the fact to be proved. — Code, § 1803. So that the affirmative charge reqxxested by defendant on the theory that to warrant a recovery partnership should be proved in connection with the absence of all evidence on that point, was properly refused.

The court below did not err in allowing the witness Walker to testify as to the general nature and purpose of the suit in which he represented the defendant and as to the particular services he rendered therein, as tliat it was a bill to foreclose a mortgage on property claimed by this defendant, that a receiver was appointed to take charge of the property pending the suit, that lie filed an answer and cross-bill for her, filed interrogatories to her witnesses, and cross-interrogatories to -witnesses examined for complainants, prepared affidavits, etc., argued the cause on submission etc., etc. The pleadings, affidavits, depositions etc. filed in that cause were writings collateral to the issue in this, and he might well speak in the general way indicated of these papers without violence to the rule requiring primary evidence' when it oan be had .

Whether the services rendered by plaintiffs' in the cause referred to were rendered for the defendant, Mrs. Davis, and upon her undertaking to requite them, or to her husband, It. M. Davis, also a party to that suit, and xxpon a contract made with him was one of the issxxes of fact in the trial below. B, H. Walker was permitted, against defendant’s objection, to depose as a witness for the plaintiffs that B. M. Davis was at the time insolvent. This was not competent testimony on any issue in the case. Its only office in the case xvas to afford a basis for an wholly illegitimate inference on the part of the jxxry that-plaintiff did not contract with R. M. Davis nor render professional services on his responsibility from the fact of his insolvency.

The second charge requested by the defendant should have been given. When referred, as it must be, to the evidence it means, and would have been so understood by the jury, that the plaintiffs could not recover against the defendant, Sirs. Davis, for services rendered by them, not to her, upon a contract with her but, to her husband R. M. Davis and under a contract with him alone.

Reversed and remanded.