81 Iowa 212 | Iowa | 1890
The grounds of the demurrer are, that the second count of the counterclaim does not show that the defendant paid or furnished the necessary expenses for conducting the appeal, nor that the plaintiff engaged to carry the appeal further than he did, nor that he disobeyed any instructions of the defendant, nor failed to render all the services for which he was employed ; that it does not show that the plaintiff made any misrepresentations of facts, that the defendant relied upon to his prejudice, nor that the defendant has sustained damages as a direct result of the breach of contract alleged. The allegation is that the plaintiff agreed, as attorney for defendant, to appeal and prepare the case for trial, to prepare an abstract, and do all things necessary to present said case to the supreme court. Such an employment
It is contended, that as the- count fails to show that the defendant paid or furnished the necessary expenses of conducting the appeal, there was no obligation upon the plaintiff to proceed further with it. It requires no argument to show that, under his employment, the plaintiff was under no obligation to pay any of the expenses necessary to the prosecution of the appeal, nor to become personally liable therefor. It was the duty of the defendant to provide for all such expenses, and a failure on his part to do so, after being properly advised by his attorney, would excuse the attorney from further prosecuting the appeal. It is alleged that the plaintiff knew that defendant did not understand what was necessary to do in the matter of the appeal, that defendant followed plaintiff’s directions in all things, and was ever ready to furnish money and to do anything that the plaintiff should deem necessary, and that the plaintiff did not request him to furnish any money. Attorneys are presumed to be familiar with the law and rules of practice, and to know when, and for what expenses, it is
The damages claimed were clearly the direct result of the failure to prosecute the appeal. We fail to discern any cause that came between the failure to prosecute the appeal, and the judgment which defendant was compelled to pay. The failure was not only a direct, but the only, cause for the judgment. True, the defendant might have been charged with all these costs other than the attorney fee, had the appeal been prosecuted, but that would have been a different judgment, and fora different cause, and does not change the fact that this judgment was the direct consequence of the alleged failure of the plaintiff to prosecute the appeal. The count demurred to, fairly construed, shows a cause of action against the plaintiff, and the objection taken by the demurrer, and the arguments adduced in support thereof are too technical to be sustained.
IY. There was no error in refusing to allow the defendant to prove that his creditors had returned to him printed slips stating that he had been attached and that notices had been sent to the commercial papers. It is contended that this evidence was admissible as tending to show malice in the suing out of the attachment, and that defendant was attempting to trace the sending out of such notice to the plaintiff. Without being so traced the testimony was clearly inadmissible and it was within the discretion of the court to require the defendant first to produce evidence tending to connect the plaintiff with the sending 'out of the notices before introducing the printed slips to the jury.
Y. It is complained that the court in the fifth paragraph of the instructions ignored the plea that the services were rendered under special contract. Taken alone that paragraph is open to this objection but, takeD in connection with the following paragraph, the subject is fully and fairly presented to the jury. We see no error in the instructions.
For reasons already stated the judgment of the district court must be reversed. As the other eri’ors assigned will not arise on a retrial they need not be noticed. Reversed.