Phelps v. Hunt

| Conn. | Apr 15, 1873

Foster, J.

On this motion for a new trial, there are but two questions presented which we deem it necessary to consider :—

1. Was the testimony offered as to the professional standing of the plaintiff as an attorney at law, which was rejected by the com-t, properly admissible ?

2. Ought the depositions offered by the defendant, which were ruled out by the court, having been objected to on tlie ground of the want of reasonable notice of the taking, and because they were not filed on the first day of the term, to have been received in evidencb ? ;

As the manner in which we determine the first of these questions is decisive of this motion, we rest the decision of the case upon that question. We add a brief expression of our views as to the admissibility of the depositions to prevent litigation, as the points involved frequently arise in practice.

An action brought by an attorney at law to recover fees for professional services depends upon the same principles, and is governed by the same rules, that apply to other actions brought to recover for services rendered in any lawful employment. In the absence of a special contract the plaintiff is entitled to recover what he reasonably deserves to have. The value of professional services may depend, very considerably, upon the character and standing of him who performs them. In the first place, there are diversities of gifts; then the period of time passed in the profession, the experience acquired, the degree of skill, the faculty of using professional knowledge, make great differences in individuals. The services of some are worth more than the services of others because they will command more. Should a question arise as to the value of services, in an action brought by an attorney to recover fees, where the nature of the services performed makes the possession of certain qualifications to constitute an important element in the value of those services, evidence of professional standing is clearly admissible, and is entitled to much consideration. Such seems to have been the character of the case at' bar. A large portion of the amount claimed is for advice. That the plaintiff’s bill should have seemed large to this defendant, and on that account should have been objected to by him, is certainly not strange; it seems large to us. Looking at the time spent, and the character of the items, between .seven and eight hundred dollars is a large charge; in the absence of explanation an exorbitant charge. The account runs over a period of some four months. The plaintiff seems not- to have been called to court on behalf of the defendant in a single case, nor to have been called from his' office but for two days, on one only of which was he called out of his town. For the first two months, May and June, the entries show services performed on eleven different days. For the last two months, July and August, the particular days are not specified; there are two entries in July, three in August. What the amount of the defendant’s business was, and how large the transactions were in which he was engaged, does not distinctly appear. He was a boot and shoe dealer at Meriden, and there seems no reason for supposing that his business was extensive or complicated.

Under all these circumstances, we think an inquiry as to the professional standing and eminence at the bar of the plaintiff, was a legitimate and proper one. The precise question proposed may be objectionable as to form, but we think that the amount of business done, perhaps the amount of income, certainly the amount of charges, may be made a subject of enquiry; although those facts do not, as was correctly claimed by the plaintiff’s counsel, prove one’s standing at the bar, yet they tend to prove it. In law as in war, success is one test of ability. The military man who wins many victories will be called an able general, and a lawyer who is pressed with professional engagements shows one of the incidents of legal eminence.

We think the evidence objected to was admissible. In the case of Robbins v. Harvey, 5 Conn., 335" court="Conn." date_filed="1824-07-15" href="https://app.midpage.ai/document/robbins-v-harvey-6573881?utm_source=webapp" opinion_id="6573881">5 Conn., 335, a suit like this, brought to recover for professional services, the plaintiff offered evidence to show his standing in the profession. It was objected to, and admitted in the Superior Court. A motion for a new trial was made and granted-, but on other grounds. The court, in the opinion given, took no notice of this question.

Upon the points made as to the admissibility of the depositions, we merely remark that, as the legislature has not determined what is reasonable notice, each case must, to a certain extent, be governed by its own circumstances. The opposite party must have a fair opportunity to cross-examine the witnesses. It seems to us that the notice in this case afforded such an opportunity, and that the objection, on that ground, to receiving them i'll evidence, should have been overruled. Nor do we consider the fact that they were not filed in court on the first day of the term, a conclusive reason for their rejection. An inflexible rule of that sort might work great injustice, and we should hesitate to adopt or recognize it. It is desirable, certainly, that depositions should be taken in vacation, but circumstances may make it impracticable. In such an event, if. the party has acted fairly and in good faith, we can readily imagine a case where a deposition could be properly taken after reasonable notice, though it were term time, and where justice would be promoted by allowing it to be read in evidence. On the facts as detailed in this motion we incline to the opinion that this was such a case, and the motion states that these depositions contained evidence which was material to the defence. We refer to Sharp v. Lochwood, 12 Conn., 158, and to Masters v. Warren, 27 Conn., 299, for a further expression of our views.

A new trial is. advised.

In this opinion the other judges concurred.