85 Vt. 253 | Vt. | 1911
The action is general assumpsit. Each defendant pleaded the general issue, and defendant Gordon also pleaded book-account in offset. The case was tried before one styled a referee and auditor, whose report was accepted and judgment rendered thereon for the plaintiff. The case was argued before us on a bill of exceptions in behalf of the plaintiff, and bills in behalf of each defendant.
It is stated in the plaintiff’s bill that no exceptions were taken in his behalf before the auditor, nor to the report. That none were filed in the court below, nor any claim made in respect thereto until the rendition of the judgment. In these ■circumstances, so far as the rulings of the referee are concerned, nothing is presented for review except such questions as are expressly submitted by the referee in his report. By P. S. 1794 it is provided that no exceptions to the report of a referee or questions as to the admissibility of evidence shall be considered
The facts found by the referee show that this plaintiff brought a suit against certain parties for the recovery of damages on account of injuries received while in their employ. He engaged the defendants to bring and conduct that suit, but this was by contracts with them severally and not jointly. They continued to act as attorneys for the plaintiff in that litigation ■until final judgment was rendered therein. On June 2, 1906, the defendants in that suit drew their check for $3,623.26, the amount of the judgment and costs, to the order of M. M. Gordon and Richard A. Hoar, these defendants, and delivered the same to the defendant Gordon, who endorsed the check and delivered it to the defendant Hoar, who also endorsed it. The check was then delivered to a Miss Price, defendant Hoar’s stenographer, who for some unexplained reason endorsed it, and took it to the bank and obtained the currency on it. This currency she turned over to Gordon and took his receipt for it. Thereupon, Gordon paid her for Hoar the sum of $1,400.,— the same being the amount of Hoar’s account for services, and
The plaintiff filed a specification as follows: “ In the above entitled cause, the plaintiff specifies as the claim upon' which he will rely in the trial of the same the following:
June 2. To cash received from Marr and Gordon, of Barre, Vt., for me in settlement of my judgment against them obtained in Washington County Court, and affirmed by the Supreme Court........................ $3,623.25
Less commission of 20% on judgment of $3,450.00, as per agreement.............. 690.00
$2,933.25
This specification was neither withdrawn nor amended during the trial.
The defendants insist that, since the plaintiff failed to establish his claim that Gordon agreed to take the case on a contingent fee of 20% of the recovery, the plaintiff is out of court, and that he cannot recover on any other contract or theory than the one covered by his specification, — invoking the rule applied in Aseltine v. Perry, 75 Vt. 208, 54 Atl. 190, that a specification circumscribes the scope of the evidence and the plaintiff’s right of recovery. But this claim is based upon a misconception of the ground of recovery set up in the specification. The basis of the suit as made by the specification is the money had and received by the defendants for the plaintiff’s use, — $3,623.25. Against this sum, the plaintiff admitted a credit amounting to $690 on the basis of 20% of the judgment. Though the plaintiff failed to establish this basis of the credit allowed he was not thereby precluded from recovering so much of the sum paid to the defendants as they wrongfully withheld. It is as if a plaintiff allowed as a credit on the amount claimed a specified sum for a horse received of the defendant, and it
So it became the duty of the referee to investigate and pass upon the defendants’ accounts. Having done so, the referee reports that Gordon overcharged the plaintiff $310., and that Hoar overcharged him' $165. These overcharges were made in connection with the preparation and argument of the case in Supreme Court. In reaching his conclusions regarding this, the referee examined the briefs prepared to determine the propriety of the charges in connection therewith. The defendants say that this was improper, and that it was his duty to find according to the undisputed testimony of the witnesses, who said that the time charged for was actually spent, and the per diem charges reasonable. But we think the referee did just right in dealing with the matter as he did. The briefs themselves would afford some evidence of the time spent and of the time which ought to have been spent in their preparation, having regard for the interests of the client being served. There is a plain intimation of the propriety of such action in the last point disposed of in Carpenter v. Gibson, 82 Vt. 336, 73 Atl. 1030.
As we have seen, Hoar discounted his bill $89.50. The referee submits to the court the question whether that sum should be deducted from the overcharge of $165. In rendering judgment below, the court allowed this sum to Hoar, thereby reducing the overcharge to $75.50. The plaintiff says this was error, but we think it was correct. This allowance was
The plaintiff claimed that as a matter of law both defendants were not entitled to charge term and attorney fees. And this question was submitted to the court. The referee allowed these charges as made and they were included in the judgment below. In this we find no error. Whether more than one of the attorneys engaged on the same side of a suit is entitled to charge term and attorney fees therein is a question depending largely upon the circumstances of the case. It involves a consideration of the facts, which are for the determination of the trier. Here the referee has in effect found that such charges in this case were reasonable and proper, and we cannot disturb the finding.
We have also seen that Gordon sent the plaintiff a check for $107.55, which is now in the hands of the clerk. The referee submits to the court the question whether the amount of Gordon’s overcharge should be reduced by the amount of this check. The court below deducted the check, making the amount in Gordon’s hands which went into the judgment $202.45. The propriety of this may well be questioned, for the plaintiff has not accepted the check, but the plaintiff did not except to the judgment on this ground, and so is not. in a position to complain.
The plaintiff objects to the judgment below because he says it includes charges made for services rendered on Sunday. But there is no finding to that effect. In speaking of the expenses of the suit, the referee says in the report that they were paid by the defendants “as indicated by their accounts hereto attached.” This is not sufficient to make the accounts a part of the report, and consequently, though they may show that part of the charges are for Sunday, work, we cannot look into them. Such papers, being outside the regular files in the case, must be specially referred to and made a part of the case, or they will not be noticed. Wheeler v. Sears, 19 Vt. 559.
The question presented here is not whether these defendants could have so conducted themselves with reference to the check as to become jointly liable for so much of its avails as were not properly accounted for, but whether they did in fact so conduct themselves. It is apparent that they had no joint interest in the judgment. The plaintiff says in his brief that the docket entries show that each of the defendants filed a notice of an attorney’s lien. We might refer to these entries though they are not made a part of the case, Spaulding v. Warner, 57 Vt. 654, but it is apparent that such liens, if asserted, were several and not joint. Nor did any of the avails of the check come to their joint possession or control. The only connection which Hoar had with the check was for the purpose of endorsement. It does not affirmatively appear that his stenographer was acting for him when she took it to the bank and cashed it. But assuming that she was, the method adopted discloses a plain intention
It does not follow, however, that the defendants were entitled to a judgment. While it is true that at common law a plaintiff must recover against all the defendants or against none, and that he cannot have separate judgments against each, Machine Co. v. Norris, 39 Vt. 393, and if a plaintiff alleges a joint contract and fails to prove it, he fails altogether, Wright v. Gear, 6 Vt. 151, 27 Am. Dec. 538, since the enactment of P. S. 1530, a plaintiff may have judgment against one or more of the defendants though no joint liability is established. In Reynolds v. Field, 41 Vt. 225, it is said in effect that this statute was intended to cover all cases wherein too many are sued, and that judgment may be taken against so many as are found liable. It is true that that was a case where one defendant was liable, and the other was not; but Powers v. Thayer and Wait, 30 Vt. 361, was a case wherein both defendants were liable, but for different amounts. It was held that there could be no joint recovery, but that the case came within the statute, and that the plaintiff might elect or the court order which defendant should be discharged. The judgment below against one of the defendants alone was affirmed. Under the authority of these cases it must be held that the plaintiff was entitled to a judgment against one of the defendants, and the case will be remanded that he may proceed in the county court as he may be advised.
Note. The foregoing opinion was read at the October Term, 1911, and the ease held pending a conference of counsel, who now announce a settlement of the case, and it is so entered.