Gorman v. Bigler, 8 Pa. Super. 440

8 Pa. Super. 440 | Pa. Super. Ct. | 1898

Opinion by

Smith, J.,

This action was brought to recover the amount of attorney’s commissions and costs which had been collected on two judgments wherein John W. Gorman was plaintiff and James L. Gorman was defendant. Those judgments were entered by the plaintiff on judgment notes without the intervention of an attorney, and no professional services were required until executions were issued. The items for which suit is brought were believed by James to be exorbitant, and he instructed his attorney, Mr. Swope, to object to them at the time the executions w.ere issued. The attorney had a conversation with John in relation to the matter and the latter said: “ If James could make an arrangement to get his money, get somebody to furnish the money, that he [John] would be willing to pay the costs and expenses. All he wanted was his money.” This the attorney promised to try to do; and thereupon James endeavored to find a purchaser for the real estate which had been seized under the executions. Afterward, through the efforts of J ames, a sale of the land to General Patton was effected, and the debt, interest, costs and attorney’s commissions due on both executions were paid to John. At the time this money was paid General Patton reminded him of the concession he was to make to J ames and proposed to deduct the amount and make a check to John for the difference, but the latter said, “No; I will settle with James for that.” General Patton testified that James induced him to purchase the property, saying: “ I did not want to take the property, but James urged nie very much, and said he would be benefited. .... I wouldn’t have bought it if James L. Gorman hadn’t asked me to do so.”

There can be no reasonable doubt, under the evidence, that the attorney’s commissions and costs on those judgments were the items to which James objected. They were the subject of the conversation between John and Mr. Swope, and were the only matters in dispute between the parties. While the evidence on this point was not as full as it might have been, owing to the death of John and the consequent incompetency of James as a witness, there was sufficient testimony presented to require its submission to the jury. The finding in favor of the plaintiff was set aside by the court on a reserved question and judgment was entered for the defendant notwithstanding the verdict. The ground of this action by the court seems to have been that, inasmuch as the costs and commissions were due and owing, the alleged agreement to refund them to the plaintiff was without consideration and cannot be enforced. Further objection to recovery by the plaintiff is based on want of mutuality in .the contract set out in the declaration ; that while it is averred that the defendant promised to pay these moneys to the plaintiff, “ there is no allegation that the plaintiff was to do anything under the contract, nor that he did do anything under it, or that he was obliged thereby in any way; nor does it show any consideration or inducement to the decedent.”

With the plea of non assumpsit entered for the defendant, the case was tried on the merits in the usual manner. Oral testimony showing the transaction, including proof of matters omitted from the declaration, was given on the trial without objection. The question of the sufficiency of the plaintiff’s declaration was not properly raised in the court below, so far as this record shows, and its adequacy in form or substance was not embraced in the points reserved for determination by the court. No issue on the sufficiency of the pleadings was presented. The case was submitted by the parties on the testimony-touching the merits of the plaintiff’s claim, and was given to the jury on that testimony, with suitable instructions. If it was intended to object to the declaration on the ground of informality or inadequacy, this should have been done in the established way, by demurrer: Bradly v. Potts, 155 Pa. 418. The issue as joined necessarily required proof of the defectively stated contract, and, after a trial on the merits, omissions in the declarar tion will n'ot defeat the verdict: Quick v. Miller, 103 Pa. 67; Barker v. McCreary, 66 Pa. 162; Arons v. Smit, 173 Pa. 630. The court erred, therefore, in holding that “the plaintiff’s only right to recover was under the contract and cause of action set out in the statement,” and that “under the pleadings and evidence the plaintiff could not recover.” By entering the plea of non assumpsit and proceeding to trial on the merits, and awaiting the verdict, the defendant waived the right to assail the pleadings. The evidence submitted disclosed a good cause of action. As to the testimony to which objection was made, and a bill of exceptions sealed, it was clearly admissible for the purposes for which it was offered; and it is a familiar principle that “ where a party opposing the admission of evidence enumerates his objections, all that are not enumerated are waived: ” Messmore v. Morrison, 172 Pa. 300.

The defendant’s points, presented, of course, after the evidence was closed, could not have been affirmed. The evidence showed facts and circumstances from which a valid contract could have been inferred. The jury could reasonably conclude from the evidence that John W. Gorman desired his money rather than the property, and had agreed to pay the amount of the costs and expenses to the plaintiff for procuring the money by a sale of the land. The evidence did not show that this agreement was to terminate on the sheriff’s sale. On the contrary it appears that both parties co-operated in its consummation thereafter. From the sheriff’s sale to the time of the sale to General Patton the property belonged to John, and the services of James touching the latter sale were necessarily rendered for John. For these services the jury have found that John agreed to pay; and this question was purely one of fact for their exclusive determination. With this conclusion, it is unnecessary to discuss matters of practice suggested by these proceedings. The defendant’s fourth point, which formed the second reserved question, was properly overruled.

Judgment reversed, and judgment is now entered in favor of the plaintiff for $490.99 as found by the jury with interest from the date of the verdict.