| Pa. | Jan 4, 1875
delivered the opinion of the court, January 4th 1875.
We are of the opinion that the learned court below erred in the answer to the defendant’s second point; not that the defendant was entitled to an absolute and unqualified affirmance of it, for upon the testimony of the plaintiff, the jury might have been justified in finding that Nelson Jones had recognised and ratified the employment of the plaintiff as counsel for himself and his brothers. One of the plaintiffs had testified that the defendant spoke to him occasionally; that the suit was brought in the name of Thomas Jones, Nelson Jones and Pressley Jones; all signed the bill, and he appeared for them all. Mr. Nelson Jones knew of the proceedings all the time, all the way through, and whenever it was necessary took part in it. Mr. Nelson Jones, on the contrary, denied that he had authorized or ratified the employment. Of the affirmanee, however, the plaintiff in error could not have complained, but the court proceeded to qualify and explain it in a way that was well calculated to mislead the jury and turn their attention aside from the true question in the cause. In instructing the jury that if they should find that the retention and services of counsel were for the benefit of all the heirs, and enured to the advantage of all and all, the defendant included, were aware of the fact, then all of them are liable, and all should be made to pay for the services so resulting to their general benefit and advantage, there was manifest error. A voluntary service rendered by one man to another, without any precedent request, or subsequent promise, forms no ground of action. It is true that such precedent request will often be inferred from the work being done under the defendant’s eye and for his benefit. But that is necessarily an inference of fact to be made by the jury from all the evidence. There were circumstances in the case which tended to show that after the sheriff’s sale and the end of the equity case, the plaintiff dropped the name of Nelson Jones from the proceedings and no longer considered himself as his counsel. Yet the learned judge left it to the jury, if they found that the plaintiff’s services resulted in benefit to the defendant, that he was liable to pay without either precedent request expressed or implied, or subsequent promise.
It is unnecessary to consider the remaining assignment of error that the court erred in allowing the damages in the declaration to be increased after verdict.
Judgment reversed, and a venire facias de novo awarded.