141 A. 866 | Conn. | 1928
The complaint alleges that plaintiff was on September 13th, 1926, and ever since has been *493 the owner of a Hudson automobile of the value of $300, and lawfully entitled to its immediate possession from which defendant wrongfully detains the plaintiff. The plaintiff claims possession of the automobile and $300 damages. The answer is a general denial and a counterclaim that the defendant, at the time specified in the complaint, was and still is the owner of, and entitled to the immediate possession of, the automobile; that the defendant purchased it on a partial payment plan and on September 13th, 1926, tendered plaintiff and its agents the amount due it and requested the agents to inform defendant as to the charges or costs due it in addition to the $35 due on the purchase price; that plaintiff has refused to accept this sum of $35 and has removed the automobile from the possession of defendant and deprived her of the use thereof from the date of replevy; that plaintiff has demanded of defendant the return of the automobile or $75 plus attorney's and sheriff's fees; that this demand is usurious and is made under threat of depriving defendant of the automobile unless defendant pays this demand which is not in equity and good conscience due but is an attempt to exact a penalty. Defendant claims under her counterclaim a return of the automobile and $250 damages.
Plaintiff answered the counterclaim by a general denial, except that it admitted that defendant purchased the automobile on a partial payment plan, and for a second defense alleged that defendant purchased the automobile under a conditional bill of sale, by the terms of which, upon default of defendant in the payments, the plaintiff should be entitled to retake the automobile; that defendant made such default and plaintiff replevied it in accordance with the conditional bill of sale, and that at no time prior to the replevying of the automobile did defendant tender plaintiff the *494 balance due. The defendant denied in her reply all the allegations of plaintiff's second defense.
The jury rendered its verdict that defendant recover possession of the automobile and recover $1 damages, and judgment was entered in accordance with the verdict and that defendant recover her costs. Judgment for costs should not have been rendered in favor of defendant without deducting therefrom the reasonable expenses provided for in General Statutes, § 5638, since defendant had untruly pleaded denial of facts without reasonable cause. Rules Under the Practice Act, § 199.
The reasons of appeal are confined to the denying of plaintiff's motion to set aside the verdict and to certain rulings on evidence. The facts alleged in the complaint are not disputed in the evidence except that the date of the replevy was September 17th instead of September 13th. The defendant offered evidence to prove that plaintiff placed in a deputy sheriff's hands a writ of replevin for this automobile on September 17th, 1926, when $34.13 was due plaintiff from defendant, and that on this day the sheriff agreed with defendant's attorney that the writ would not be served by him until defendant's attorney could communicate with plaintiff's attorney. The attorneys thereupon agreed that the balance due, together with the expenses and costs of the action, would be paid by the defendant in full settlement, and that the service of the writ would be held in abeyance until September 20th, 1926. After this arrangement had been entered into and before September 20th, the sheriff took possession of the car despite the agreement. On September 20th the attorneys agreed that the sum payable under the agreement of September 17th, 1926, was $60, and defendant agreed to send a check for this, and did send plaintiff's attorney a check for $60 on September 28th, which he returned and demanded $118 in settlement. Defendant *495 has always been ready and willing to carry out this agreement. Defendant claimed she was on September 17th in rightful possession of the automobile and the owner thereof.
The plaintiff offered evidence tending to prove that defendant's attorney had telephoned its attorney on a Saturday afternoon and he agreed he would telephone plaintiff and get the amount plaintiff claimed was due and let him know but as he could not get his client he did not telephone. On Monday, the 20th, he got the figures and gave them to him, $118, made up of $75 for plaintiff, $25 for attorney's fees, and $18 for sheriff's fees. Subsequently plaintiff's attorney received a check for $60, which sum had never been mentioned between them, and after consulting his client he returned the check. Plaintiff's attorney testified that on the day defendant's attorney first called him on the telephone the automobile had been replevied and the sheriff's return gives this date as September 17th. If the attorneys made the agreement which defendant claims on September 17th, and before service of the writ of replevin, and the defendant had properly pleaded the agreement, service of the writ in violation of the agreement would not have been permissible. But defendant cannot take advantage of the agreement for the reason that she did not specially plead it in her answer. The agreement was not put in issue. Evidence of the agreement came in without objection to its admissibility because not pleaded. Defendant's attorney claimed upon the argument that he had pleaded the agreement in the cross-complaint. He is mistaken in his reading of the cross-complaint; it does not allege the agreement he defended on. Moreover, a defense to an action cannot be supplied by the allegations of a cross-complaint. Had it been pleaded it would not have availed the defendant, since the agreement as claimed by her was *496 that the writ would be held in abeyance until September 20th, and upon this date it was agreed by the attorneys, as claimed by her, that $60 was the amount due, for which defendant's attorney agreed to send a check. This he did not do until September 29th, which was not compliance with his agreement within a reasonable time. The denial of the motion to set aside the verdict was error.
The defense of the defendant rested wholly upon the testimony of Mr. Finkelstone, an attorney and partner in the firm of Lavery and Finkelstone, as to an agreement made by him with Mr. Morgan of the firm of attorneys representing the plaintiff and appearing in the trial. The plaintiff duly excepted to the ruling admitting this testimony. Mr. Finkelstone did not participate in the trial, Mr. Lavery conducting that. When the action was brought Lavery and Finkelstone entered an appearance for the defendant, signed and filed all pleadings in the firm name as well as the counter-finding, but the brief was signed by Mr. Lavery alone. Mr. Finkelstone knew when his firm was retained to represent defendant that he would be a most important witness in support of defendant's defense, and both he and Mr. Lavery knew that his testimony would be indispensable for all of the six months or more the case was pending in court, and up to the time when the trial began. Mr. Morgan also knew after the cross-complaint was filed that he would be an indispensable witness for the plaintiff. Under these circumstances the Code of Ethics, § 21,
The exception to the ruling permitting Mr. Finkelstone to testify as to his agreements with Mr. Morgan does not involve the right of the attorney when actively engaged in the conduct of a case to become a witness in behalf of his client, but the right of an attorney, who is not participating in the conduct of the case, to testify in behalf of his client, whose case is being conducted by his partner, but has been participated in by him up to the trial by having all pleadings signed in the partnership name, and who will, so far as appears, share in the fees obtained by the partnership. If it be a wrong practice for an advocate in the conduct of a trial to be at once the advocate and a witness in the trial, we see no legal or logical difference between the position of a partner who is the advocate in the cause and the partner who is a sharer in the fees obtained but who does not appear as an attorney in the conduct of the case. They are each responsible for the litigation. Professor Wigmore says the most potent reason for the prohibition of the attorney as a witness in behalf of his client lies in the dangerous effect the practice will have upon the public mind, tending to effectively diminish and undermine "the public's respect for the profession and confidence in it." 4 Wigmore on Evidence (2d Ed.) § 1911. The public will be apt to think that the lawyer, whether he is an active partner in the conduct of the trial and also a material witness, or an *499 inactive partner and a material witness, will be inclined to warp the truth in the interest of his client. If this feeling will be more easily generated in the case of the active partner than in the case of the inactive partner, it will only be a question of degree. In either case, the distrust will be created. The rule of prohibition for the inactive partner, as for the active partner, is for his own protection, not because the court thinks that he, in either case, will in fact often be exposed to temptation, but to avoid the appearance of wrongdoing. Integrity is the very breath of justice. Confidence in our law, our courts and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites toward the administration of justice a doubt or distrust of its integrity. Between the prevention of that and the occasional deprivation of an attorney or a firm of attorneys from a part of his or their prospective fees in a given case there is no choice. The great weight of authority in this country holds that the attorney who acts as counsel and witness, in behalf of his client, in the same cause on a material matter, not of a merely formal character, and not in an emergency, but having knowledge that he would be required to be a witness in ample time to have secured other counsel and given up his service in the case, violates a highly important provision of the Code of Ethics and a rule of professional conduct, but does not commit a legal error in so testifying, as a result of which a new trial will be granted. Note, 49 L.R.A. (N.S.) 422.
A few American authorities hold the admission of the evidence of an attorney under such circumstances to be an error of law for which a new trial will be granted. Sebree v. Smith,
We have followed the weight of authority in holding the impropriety of an attorney so testifying not to be an error of law, so as to make a mistrial, relying upon "the restraining influence of a professional education and of the opinion of the bar and bench, and the liability to discipline for persistent misconduct, as competent to suppress evils of this character." French
v. Waterbury,
There are few cases which involve the right of a partner, who does not participate in the trial, to be a witness upon a material matter which he knew in advance of the trial that he would be required to testify in relation to. Wallace v. Wilmington N. R.Co., 8 Houston (Del.) 529, 18 A. 818, supports the view we take. In Flynn v. Flynn,
Plaintiff objects to Mr. Finkelstone's testifying as to when the automobile was replevied upon the ground that all of his information upon this point admittedly came from what the sheriff told him. In reliance upon *502 what the sheriff told him he testified that his first conversation with Mr. Morgan followed his conversation with the sheriff and occurred on September 17th. We do not regard a statement of the sheriff to him as to whether or not he had at a given time made service of the writ as inadmissible hearsay, since the sheriff was acting in behalf of the plaintiff and under the circumstances within his implied authority. Mr. Finkelstone was entitled to rely upon the sheriff's statement that he had not served the writ as a fact and to testify regarding it as an accepted fact.
The objection that the agreement between the attorneys as to the amount defendant should pay was a compromise and for that reason inadmissible, is not well taken. There was no element of a compromise in the arrangement claimed by the defendant to have been made with Mr. Morgan; it was payment in full of all of the claim, together with the expenses and costs of the replevy.
There is error and a new trial is ordered.
In this opinion the other judges concurred.