Davis v. Walker & Walker

131 Ala. 204 | Ala. | 1901

TYSON, J.

The nature of this suit is sufficiently indicated in the opinion in this case on former appeal. Davis v. Walker, 125 Ala. 325.

Accepting the theory of the defendant as correct, that Walker was not authorized under the express contract of August 13, 1898, to represent her in the case of The J. P. Williams Company against her and her husband in the United 'States Court, nevertheless the jury were authorized under the pleading and the evidence to find her liable for the services rendered her by him in that case. With the provisions of the contract of August 13 limited to Walker’s employment of arranging with the receiver that certain property was .to remain in defendant’s possession, this being the theory of the extent and effect of that contract, there was evidence tending to establish her liability upon an implied contract for the 'Sendees rendered by Walker as attorney for her, after she was made a party defendant in the Williams Company case. It is true that “no person has the right to compel another involuntarily to become his debtor, except in certain excepted cases,” yet “if one perform useful services and work for another, of a character that is usually charged for, with the knowledge of that other and he expresses no dissent or if he avail himself of the services, then the law implies a promise to pay for such services what they are reasonably worth. And assent is sometimes implied from silence.” Humes v. Decatur Land Co., 98 Ala. 461; Seals v. Edmondson, 73 Ala. 295.

So then, adopting defendant’s 'construction of the express contract and the limitation placed upon it by her, under this phase of the case, the issue was whether there was an implied contract on the part of the defendant to pay the reasonable value of the services, there being no dispute of their rendition. To this issue it was utterly immaterial what was the result of the Williams case, or what services were to be perfomed under the contract of August 13, or what may have been the defendant’s purpose in employing Walker.

Nor was there error committed in allowing plainliffs to introduce in evidence tile answer and cross-bill prepared by Walker, signed by defendant and filed in the Williams case. It tended, not only to show the nature of the services rendered, but also knowledge on the part of defendant of the' rendition of the services and of her acceptance of. them.

The contention that 'Charges 1 and 6 should have been given because of the want of proof of a partnership between the plaintiffs at the time the express contract was entered into or at the date of the rendition of the services in the United Btaes Court is fully answered in the opinion on former appeal. — Davis v. Walker, supra.

Charges 2 and 5 were calculated to mislead the jury to the conclusion that there must have been an express contract of employment to authorize a recovery for the services rendered in the United States 'Court.

Charge 3 takes no account of defendant’s liability upon an implied contract if found by the jury to have existed.

Charge 4 is abstract in assuming or hypothesizing that Walker made a contract to perform the services for defendant with R, M. Davis, the husband of defendant. It is true that, the husband testified that he made such a contract, but it affirmatively and undisputed^ appeals from the testimony of Mrs. Davis that he was without authority to do so. Nor does the testimony anywhere disclose that she had any knowledge of such contract if made. If made she was not bound by it, and, therefore, Walker was not bound. There was no meeting of tlie minds. Besides, Walker in his testimony pointedly denied making the contract which the husband claims1 to have made with him, It was also bad on account of its misleading tendencies. There need have been no express contract of employment, as a recovery may have been had upon proof of knowledge on the part of defendant that Walker was rendering services which are usually charged for and that she expressed no dissent to' their rendition.

It is unnecessary to discuss the other phase of the case involving the right- of the plaintiffs to recover for services rendered by Walker- in the United States Court under the contract of August 13, since adopting the defendant's theory and insistence that it had terminated and did not hind her to pay for the services rendered by Walker in representing her in that suit, a recovery was properly had upon the phase of the case considered by us.

Affirmed.