King v. Barber

61 Iowa 674 | Iowa | 1883

Seevers, J.

— In June, 1873, Scott Howell was an attorney at law. Tbe defendant employed bim to commence an action against Bower, or Bower & Bradley. There was evidence tending to show that there was a special contract made as to the compensation to be paid Howell. The latter commenced the action. On the first day of July thereafter, J. G. Anderson entered into partnership with Howell for the period of three years. During the continuance of the partnership, the firm attended the litigation under and by virtue of the arrangement with Howell. During the partnership, an action was brought in which the defendant intervened, and in which the firm acted as his attorneys. But whether this litigation was included in the special contract made with Howell was a controverted question. After the dissolution of the firm, Anderson attended to the litigation, and so did Howell.

There was evidence tending to show that Anderson did not have knowledge of the special contract made with Howell until some time after the dissolution, and that he repudiated it when the same came to his knowledge.

The evidence also tended to show that the defendant had knowledge of the dissolution, and that he corresponded with Anderson in relation to the litigation. This action was brought to recover for the services' of Anderson rendered subsequent to the dissolution.

The errors assigned and discussed by counsel relate to the instructions given and refused. The appellee insists that these errors cannot be considered, because the record fails to show that the instructions given are all before us, and because the instructions are not sufficiently identified by the bill of exceptions.

These questions will be first considered.

1. Bim of ex-rlotion to Intfoiis'fdiftyóf sumptions. I. The bill of exceptions is a “skeleton” bill, and, among other things, states: “After the introduction of said testimony? counsel argued the case to the jury, and the court gave the following instructions on his own motion, to wit: (here insert instructions), To the giving of which instructions, and each and every one of the said instructions, defendant then and there excepted, and especially excepts to instructions Nos. four and six, because etc.”

We understand the exceptions were taken at the time the instructions were given, and that this appears from the bill of exceptions. It further appears that the court gave certain instructions, which were directed to be inserted in the bill of exceptions. It is the duty of the clerk to file and preserve the instructions, and he can and must determine, when he makes out the transcript, what instructions he must insert therein as having been given by the court. He was directed to insert in the “skeleton” bill of exceptions the instructions so given. This we understand to mean all instructions given. This has been done, and such instructions are in the record. All the instructions given are, therefore, before us, unless we should presume that instructions were asked and given on the motion of either party. We do not think such a presumption should be indulged.

The instructions given, therefore, are all before us, and we think they are sufficiently identified as the instructions given by the court on its own motion. In other words, it is the charge of the court .which is referred to. If this is not a sufficient identification, then the universal practice of preparing “skeleton” bills must be discontinued. The cases of Hill v. Holloway, 52 Iowa, 678, and Wells v. B., C. R. & N. R. Co., 56 Id., 520, do not conflict with these views.

2. partner-t?mY eon-vices with81" partnerbefore partnerslnp: how lar otlier'partuer- ■ II. 'The court instructed the jury' as follows: “If the jury should find from the evidence that defendant never employed Jos. G. Anderson, but employed II. Scott Ho wel 1, and they further find that defendant had no knowledge that said Anderson was per- . . ° T f forming service for his benefit after July 1,1877, ° •> the date the dissolution of the firm of Ilowell & Anderson, then your verdict should be for defendant. There is no evidence tending to show that Jos. G. Anderson had knowledge of a special contract made by II. Scott Howell with defendant, Barber, and such contract if proved will not prevent the plaintiff from recovering the reasonable value of any service rendered by Jos. .G. Anderson for defendant at his request, or with knowledge on part of defendant that the service was being rendered for his benefit after July 1, 1877.”

In the consideration of the instructions, it must be conceded that there was a special contract made with Howell by which he agreed to accept a named compensation for his services. Anderson entered into partnership with Howell, and the firm attended to the litigation until its dissolution. Anderson, as a member of the firm, was bound by the contract previously made by Howell, whether he had knowledge’ thereof or not. The firm accepted the business pending, subject to all contracts then in existence. Anderson, up to the dissolution of the firm, was entitled to compensation under the contract made with Howell, and not otherwise. There was no separate employment of Anderson, nor individually was he entitled to compensation after the dissolution of the firm. Anderson continued the litigation. Eor some time afterward, at least if at all,- there was no new employment, or express request that Anderson- should attend to the plaintiff’s business. The most that can be said is that there was an implied request, because his services were rendered and accepted. While the defendant -had knowledge of the dissolution of the partnership, he was not notified in what capacity or why Anderson was attending to his business.

Anderson, as we have said, up to a certain time was bound by the special contract. None ‘other was ever made with him. It therefore follows that he continued to bo so bound, unless, under the circumstances, a different contract can be implied. Such an implication should not and cannot, we think, be made, under the circumstances, simply because Anderson rendered and the defendant accepted his services; and yet this is the rule of the instructions.

It may be that the defendant had sufficient knowledge that Anderson, after the dissolution, worked and labored for him, not because of the prior employment of the firm, but in his individual capacity, under a new employment for which he was to be compensated. It may be that such employment could be implied from the acts and conduct of the parties. But the jury should have been instructed that they must find that there was such employment, or that the defendant had knowledge, or should under the circumstances have had knowledge, that Anderson was not rendering his services under any contract theretofore made, but expected to be paid what his services were reasonably worth.

Reversed.