24 Kan. 520 | Kan. | 1880
The opinion of the court was delivered by
The facts.in this ease are these: Plaintiff was county attorney of Eice county. Defendant was clerk of the district court of that county, and one W. T. Nicholas his deputy. As such county attorney, plaintiff filed an information against one W. B. E. Moore, charging him with the crime of murder, and said Moore was arrested and held to answer for that offense. Thereafter said Moore commenced an action for false imprisonment on account thereof, against this plaintiff, this defendant and said Nicholas. Plaintiff defended that action successfully, and now sues defendant for professional services in making such defense. The case was tried by a jury, which returned a verdict for defendant. They also answered certain special questions. Judgment was entered thereon in favor of the defendant, and plaintiff now alleges error.
The first question is one of fact. Plaintiff testifies to an express contract, that defendant in terms employed him to defend. Defendant denies any such contract. True, the language of defendant, as it appears .in the record, is not as positive and emphatic as that of plaintiff. He says: “As I understand it, I never employed Muscott as my attorney to defend me in the Moore action, nor did I ever request him to defend me in that action/7 He admits frequent conversations with plaintiff, but they were jointly sued and jointly interested in making a defense. Such conversations were therefore very natural, and do not carry any admission of plaintiff’s employment. The words, “as I understand it,77 may have 'been intended by the witness to qualify only the first clause of the sentence, leaving the latter as a positive and ab
Again, it is said that if there was no express contract, there was an implied one, because in fact plaintiff did render professional services to defendant, with the latter’s knowledge and assent. The fact is, that all the papers on the part of the defense were prepared and signed by plaintiff alone, as attorney for the defendants. He alone presented and discussed the questions in court. The case never went to trial, however, and these questions were in preliminary matters. It also appears that defendant employed one J. H. Smith as his at- ■ torney to look after his interests in that suit; that plaintiff knew of this employment, and consulted about the case with said counsel. Now the principle upon which implied contracts are sustained is, not merely that one party has done work which benefits the other, because it was never the law that one party could force a contract upon the other, but also that such other party, knowing that the services are being performed for his benefit and on his account, makes no objection, but permits the party to continue doing the work and performing the services. Do the facts in this case show such knowledge and assent? They are consistent with, but do not prove, and therefore the jury were not bound to find such knowledge and assent. If defendant had employed no attorney to look after his interests, or had not notified plaintiff of such employment, then his knowledge that plaintiff was carrying on the defense for all the defendants, might create an implied contract. But here the plaintiff was jointly sued with defendant; their interests were alike; their defense was
The same considerations are a sufficient answer to the crit1 icism on the refusal of the court to give instruction No. 3, asked by plaintiff And there are also other reasons why the instruction was properly refused.
Objection is made to the ruling of the court in the admission of certain testimony. We see nothing in this of sufficient moment to justify a reversal. Indeed, upon the claim of an implied contract, it may well be, that all the circumstances and surroundings of the defense in the Moore case were properly presented to the consideration of the jury, and on the whole it may be said, that the record presents little more than a strong contradiction between parties as to their recollection and testimony about past events, a contradiction
The judgment will be affirmed.