Holloway v. Lowe

| Ala. | Jan 15, 1840

GOLDTHWAITE, J.

— 1. The permission given to the plaintiff, to file additional counts, was a matter entirely within the discretion of the Circuit Court, and is not the subject of revision in an appellate court, as we have determined in several cases.

2. Neither is the question raised on the demurrer, available to the plaintiff in error. The common counts are properly applicable to all cases where the cause of action grows out of a written instrument, the action of covenant excepted; and when the endorsement of the writ discloses such a cause of action, the plaintiff is authorised to declare in the common counts, if he can give the written instrument in evidence under them. An endorsement on the writ, that the action was brought to recover so much money paid; or for so much due on an account stated; or for a sum due for work and labor, would not inform the defendant, with any precision, of the cause of action; but the endorsement of the written instrument, out of which the action springs, conveys the information in a form sufficiently precise; and, if the plaintiff chooses, he may afterwards amplify his declaration, so as to avoid the consequences of a misdescription of the instrument sued on, or any defects inherent in it.

3. The instructions given to the jury, in our opinion, are not warranted by the law; and were calculated to mislead the jury from the consideration of the proper evidence, to ascertain the value of the services rendered by the plaintiff.

The evidence of the agreement to pay one half the amount recovered in the slander suit, ought not to have had any influence whatever, with the jury, and was, therefore, improperly admitted. Such an agreement was declared to amount to champerty, when this case was formerly before this court; [7 Port., 488" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/holloway-v-lowe-6529364?utm_source=webapp" opinion_id="6529364">7 Porter, 488] and so the Circuit Court seems to have considered it on this trial. This being the effect of the agreement, it was in no manner operative. The compensation due to the plaintiff for his services in the slander suit, ought to have been ascertained precisely, as if no such agreement had ever existed. It was proper to show to what extent his services were benficial to the defendant, and what fees were customary in similar eases. Instead, however, of leaving the law to the jury, to be determined by such principles, the Circuit Court, in effect, informed them that the illegal agreement was a circumstance which they could consider, and which might aid them in estimating the value of the services rendered by the plaintiff.

' If the evidence given to the jury on this subject, was consider) ed as a declaration by the defendant of his intention to give the portion of the damages mentioned, the verdict ought not to have been affected by such an intention; for it is plain the value of the plaintiff’s services was neither increased, or diminished by it.

For the error in this charge the judgment of the Circuit Court is reversed, and the cause remanded.