109 P. 704 | Mont. | 1910
delivered the opinion of the court.
This action was brought by John J. McHatton and John W. Cotter, as copartners doing business under the firm name of McHatton & Cotter, to recover the sum of $2,166.55, alleged to be due as a balance on an account for services rendered by them as attorneys, and for moneys disbursed for costs and expenses át the special instance and request of defendants. After the action was commenced, Cotter died, and thereafter it proceeded in the name of McHatton as surviving partner. The defendants deny that the services were rendered or that they were reasonably worth the amounts charged, or that any moneys were paid out by the plaintiffs at their instance and request. It is also alleged that prior to the commencement of the action all claims and demands of every kind held or owned by the copartnership or by McHatton, the surviving partner, had been fully paid •and discharged. At the trial plaintiff on his own motion dismissed the action as to the defendant Soeiété Anonyme des Mines de Lexington (hereafter referred to as the French company), and the court directed a nonsuit as to the defendant Rueger. The jury returned a verdict against defendants Berthemet and Girard for the full amount claimed to be due, and judgment was entered accordingly. This appeal is from an order granting the defendant Girard a new trial. The ground of the motion was insufficiency of the evidence to justify the verdict. Counsel for plaintiff contends that the court abused its discretion in granting the order. After an examination of the somewhat voluminous record, we are of the opinion that Girard was entitled to a new trial as a matter of right, because the evidence furnishes no substantial basis for a verdict against him.
The charges on the boobs of the firm began with the year 1899, though four items appear to have been transferred from Cotter’s individual books, which had been charged in 1898. The full amount of all the items charged for all purposes at the end of the Holbrook Case was $3,832.65. Of this sum items footing up $2,593 were charged subsequent to May, 1902. These are $2,000 charged for service in the Holbrook Case, on July 23, $50 charged for services in a ease entitled the City of Walkerville v. Rueger, on the same date; $500 charged as retainer in the Butte & Boston Case, on November 3; $10 for personal advice given to Rueger, charged on August 25; and $33 made up of items of fees paid to the clerk and a witness, at various dates during the year. These latter charges were for payments made ostensibly during the progress of the Holbrook Case. The items of credit consist of payments made from April 13, 1900,
It is entirely apparent from this' brief résumé of the evidence adduced at the trial that a judgment against Girard for the balance of plaintiff’s account could not be sustained upon any sound principle. The order is affirmed.
Affirmed.