Ingersoll v. Morse

33 Miss. 667 | Miss. | 1857

Handy, J.,

delivered the opinion of the court.

This action was brought by the defendant in error, an attorney of the State of Louisiana, to recover the sum of one thousand dollars, alleged to be due him by the plaintiff in error, for defending a suit in the city of New Orleans, against the plaintiff in error.

The case depends upon the question of fact, what amount was the plaintiff helow entitled to recover for his services, under the circumstances of the case.

On the part of the plaintiff, a transcript of the record of the suit in New Orleans was introduced, showing that the plaintiff appeared as attorney for the defendant in that suit, and took various steps in the defence of it; and it was proved by two witnesses, attorneys of the city of New Orleans, that upon an examination of the transcript of the record exhibited to them, they thought that the fee charged by the plaintiff was reasonable, according to the rule prevailing among members of the bar in that city; but that they had no knowledge of anything in relation to the case, except what appeared by the transcript of the record. And this was all the evidence, tending to show the amount to which the plaintiff was entitled for his fee.

On the part of the defendant, three letters of the plaintiff were offered and read in evidence, in relation to the amount of the fee. In the first, he requests the defendant to send him a draft for three hundred dollars, mentions his pecuniary necessities, and says, that the fee charged is less than two and a half per cent, on the amount of the judgment. In the second, he refers to the first letter, expressing his hope that he will receive the draft as therein requested. In the third, he again refers to the first letter, and hopes that the defendant will send him his draft for the amount therein specified, and states circumstances, to show that the charge is reasonable and probably below the customary rates.

Under the circumstances, it is plain that the plaintiff was not entitled to a greater fee for his services than that which he had demanded of the defendant, unless the demand made by him, can be considered as a proposition for compromise, or as a proposition to accept less than he was justly entitled to, for reasons stated, but with a distinct declaration that he was entitled to a larger sum than that which he proposed to accept. There appears to be nothing of this kind in this case; but his letters are to be considered as fixing the amount which he claimed, and to which he considered himself entitled; and having placed an estimate upon the value of his services, he cannot be permitted afterwards to say that he was entitled to a greater amount.

Judgment reversed and cause remanded for a new trial.