14 Tex. 43 | Tex. | 1855
The law of this case, in its application to the evidence upon the first trial, was settled when it was before the Court on a former appeal. (10 Tex. R. 81.) But there is an additional fact presented by the evidence on the last trial, which was not brought out distinctly so as to attract attention, and consequently was not adverted to, upon the former trial; that is, that the defendant, Ratcliff, was made acquainted with the agreement between the plaintiff, Baird, and the witness Abbott, for the substitution of the latter to complete the performance of the contract, and that he, Ratcliff, agreed to the substitution. It now appears that the substitution of Abbott as the attorney of Ratcliff, to complete the performance of the contract for Baird, was by the mutual consent and express agreement of both the parties to the contract. And it only re
And it is to be observed that the present is very different from the case, where an attorney who has been employed to render professional services, procures another to represent him and perform them for him, who does so with the consent of his client. In that case, the services, in contemplation of law, are rendered by the attorney who was employed to perform them, though actually performed by another; upon the principle of the maxim, qm, facit per aliurn facit per se; and he may recover upon the contract the price stipulated for their performance. And the client, having accepted the services of the representative in lieu of those of the attorney represented, cannot after-wards object that they were not performed by the latter in person. It was upon this principle that the case of Allcorn v. Butler (9 Tex. R. 56.) was decided. It is not upon the ground of any supposed right which an attorney has to substitute another in his place, without the consent of his client, for no such right is recognized. The contract being personal in its character, must be performed by the attorney who has been employed and has undertaken to perform it in person, unless the client consents to its performance by another. But if he does so consent, and accepts performance by another, it would be to sanction a breach of honesty and good faith to permit him afterwards to raise the objection which he did not make at the time. In such a case, the attorney whose services were contracted for is entitled to recover upon the contract as having performed it, on the principle of the maxim before quoted, that “ What a man does by another he does by himself.” (Co. Litt. 258.)
But the present is a very different case, and one to which that maxim can have no application ; by reason of the plaintiff’s legal incapacity to perform the act. For nothing can be clearer than that it must be equally true that what a man cannot do by himself,—what he is legally incapacitated and for-. bidden by law to do himself,'—he cannot do by another. It is
If nothing had been done, and rights had not been acquired by a part performance of the contract, it might have been different. For there can be no question, the moment Baird accepted the office of Judge the contract would have been at an ■end. It was at an end, as respected his ability or right to complete the performance of it. Batcliff had the right so to
The ground which appears to be mainly relied on for a reversal of the judgment, is, the refusal of the Court to give the instruction asked by the defendant, as to the effect of the failure-of the plaintiff to answer interrogatories. It might be a sufficient answer to this ground of error, that the Court was not bound to separate the propositions thus connected together in an instruction asked, one of which was, and the other was not law, for the purpose of giving the part which would have been proper, if not presented in an objectionable form and connection. For it is well settled that unless the instruction asked’ is legal and proper in the very terms in which it is asked, the Court is not bound to give it.
But a better reason for refusing the instruction asked is, that to have given the proposed effect to the failure of the plaintiff' to answer, would have been to permit the defendant thus to contradict, or evade the effect of the facts testified to by his own witnesses upon the trial. And this too, when, from the remote residence of the plaintiff, it evidently was morally impossible that his answers to the interrogatories could have been obtained ; and when there was no reason to believe that they were sought for, for the purpose of eliciting the truth, but the contrary; as it is not to be supposed that the defendant, when he propounded the interrogatories, did so with any expectation that they would or could be answered by the plaintiff. And when, moreover, the facts as to which he was interrogated, were all susceptible of proof, and were in proof by the witnesses who testified upon the trial. To have given the proposed effect to the failure of the plaintiff to answer interroga
There were instructions asked on both sides which might well have been refused. Those given at the instance of the plaintiff are not assigned as error. But both those given as asked by the plaintiff, and those asked by the defendant and refused, are alike subject to the objection'that they did not present the law rightly as applicable to the case in evidence. And though there may have been error in the rulings of the Court upon the instructions, the jury appear to have attained the same result by their verdict which must have been attained had the whole law of the case been given them in charge. There was no evidence to warrant them in giving any other credits upon the fee contracted to be paid the plaintiff, than those which they have given; and the plaintiff was clearly entitled, under the agreement and understanding of the parties as shown by the evidence, to the amount which the jury in their verdict awarded him. Though the law of the case may not have been understood upon the trial as we understand it, yet in the view we have taken of the law and the evidence, the result could not legally have been different, and it would be useless to reverse and remand the case for a new trial, which, if the law be rightly administered, must be attended with the same result. The judgment is therefore affirmed.
Judgment affirmed.