143 Va. 425 | Va. | 1925
delivered the opinion of the court»
Edward W. Scott, Jr., is here complaining of an adverse judgment in favor of Moon & Pitts, attorneys,
1. One of the defenses, stated generally, is based upon a claim that Pitts alone was employed, and that therefore the defendant owes nothing to the firm of Moon & Pitts.
It is only necessary upon this point to say that it very clearly appears from the admissions of the defendant, Scott, on the witness stand, and from his letters, that while his first interview was with Pitts, he then knew that Moon was his partner and associated with him in the practice of law; that he afterwards conferred with Moon frequently about these cases, knew that the pleadings were signed by Moon & Pitts, traveled with them from place to place in connection with the litigation, and paid Moon individually certain small amounts on account of fees therein, so that there can be no doubt whatever that he employed the plaintiffs, accepted their services in all three of these cases, and hence the jury could not have found otherwise upon this issue.
2. The defendant also claims, however, as to one of these cases — that is, the chancery suit instituted for him by them against the Shenandoah Life Insurance Company and others for the cancellation of certain large stock subscriptions, in which a fee of $3,000 was claimed — that the attorneys so neglected their duty to prosecute the case that he was forced to employ and pay other attorneys who finally compromised it.
It appears that Scott had subscribed to $29,250 of the capital stock of the Shenandoah Life Insurance Company, which had just been organized. He had
There is testimony to the effect that the suit was not
There is this striking confirmation of the claim that in the early stages of the litigation the chancery suit was delayed in accordance with the defendant’s instructions. In answer to the question: “Was it to your advantage in any way to have the Shenandoah Case .delayed, or to the advantage of the bank? (Referring to the Esmont bank), Scott said: “Well, it would have been to my advantage if they had kept the agreement, but that was one reason I got out. I didn’t have confidence in them. If they had kept their original agreement, it would have been to advantage, but they didn’t keep their agreement as it happened,” (the agreement referred to being the promise to keep a large amount deposited in Scott’s Esmont bank).
• Then as to the delay complained of, the defendant testified thus:
“Q. Mr. Scott, did you make complaint of the delay in the prosecution of the Shenandoah Life Case?
“A. I made complaint to this extent, that when I employed Mr. Lamar as leading counsel, and additional Virginia counsel, it showed I wanted to push the case, and I was dissatisfied. If I hadn’t been dissatisfied I wouldn’t have done that, and I did it with the knowledge and consent of Mr. Pitts; and I presumed he knew wby I did it: Certainly didn’t do it for the fun of spending money.”
It is observed in passing that the employment of Lamar in Washington as leading counsel, in June,
Furthermore, as to this, the defendant testified:
“Q. You were speaking of the neglect of your counsel. Did your counsel neglect that Staunton Bank Case?
“A. I don’t think I have told you anything about neglect of counsel, Mr. Walker. I said this: When I employed Mr. Lamar and Mr. Lamar requested me to employ Mr. Farr, that I presumed that Mr. Pitt's would understand that I wanted the case hurried up, because it had been going so slow. I don’t think I have said anything in regard to neglect. I said neglect after Mr. Farr, and before Mr. Farr, that was a question between Mr. Pitts and Mr. Lamar. I wasn’t in close touch. All I told Mr. Lamar as senior counsel was I wanted him to push it.
“Q. You have never said Mr. Pitts neglected the case?
“A. I don’t think I have said it, on the witness stand.
“Q. And you don’t say it now?
eíA. I would prefer that if anybody criticizes Mr. Pitts’ action in the ease, let Mr. Lamar, senior counsel in the ease, do so.
“Q. And you don’t criticize Mr. Moon, do you?
“A. I don’t know why I should criticize Mr. Moon, I never had any association with Mm.
“Q. Then on the witness stand and before the jury you say you have no criticism to make of Mr. Pitts, but would prefer it being made by Mr. Lamar?
“A. I have not yet.
“Q. Do you want to criticize him?
“A. I don’t know why I should.”
With these admissions in the record, it is manifest
It would unduly prolong this opinion and serve no .good purpose to attempt to review in detail the varied and variable statements of the witnesses on the controverted points in an opinion of reasonable length. It is sufficient to say that the only material issue which was involved was fairly submitted to the jury under proper instructions ' and their verdict, substantially .reducing the fees claimed, is their response thereto.
It may be said in passing that in one of the cases, Scott v. Albemarle Horse Show Association, finally decided by this court in 128 Va. 517, 104 S. E. 842, a small balance is claimed by the plaintiffs. In the common law action of the Staunton National Bank against Scott, a fee of $150 is here claimed, and does not appear to have been specifically paid. As to the Shenandoah Life Insurance Company Case, it appears that both of the plaintiffs here had numerous interviews with Scott and with opposing counsel, went to Staunton, Lynchburg, Roanoke, Esmont, Washington and Baltimore at various times; that they went to Richmond to examine the records in the office of the State Corporation Commission and the Insurance Commissioner, and they prepared and signed all of the pleadings in the ease. It is quite apparent, therefore, that the plaintiffs were entitled to a substantial recovery, unless they have been already sufficiently paid and have forfeited their right to additional compensation by neglect. Unless there had been some harmful error of law, the verdict finally determines the matter here, for the evidence of the plaintiffs fully supports the verdict.
(a) It is claimed that harmful error was committed against the defendant by the exclusion of four letters from Scott to his attorney, Lamar, in Washington, which were introduced to corroborate Scott’s testimony that the plaintiffs neglected their duty. This claim is based upon the rule that where the testimony of a party is attacked upon the ground that it is a recent fabrication, declarations of a self-serving character may be admitted, provided they were made at a time when a motive to misrepresent the facts did not exist.
The suit, as has been shown, had been instituted in 1917. These letters were written in May, August and December, 1921, and February, 1922, long after most of the work done by the plaintiffs had been performed. We find no sufficient basis for the claim that the plaintiffs were charging Scott with a recent fabrication. Fairly construed, their testimony is only a denial that they had neglected their duty, for it is apparent that when Scott placed the litigation in the hands of Lamar, he did so because he was dissatisfied with the plaintiffs as his attorneys. Whether or not these letters should have been admitted may be a close question, but inasmuch as the plaintiffs and defendant had each testified fully as to all of these occurrences and there is not the slightest reason to doubt that the jury knew from his evidence that Scott was then dissatisfied with their •conduct of the litigation, it is difficult to perceive how the' admission of these letters could possibly have changed the result. Unless the plaintiffs were charging Scott with a recent fabrication, they were clearly inadmissible.
In Gallion v. Winfree, 129 Va. 127, 105 S. E. 540, discussing a similar question, Burks, J., in delivering-the opinion, said: “As a rule, the prior consistent statements of a witness are not receivable to corroborate his • testimony, as the repetition of a story does not render it any more trustworthy. There are few exceptions to this rule. In 1 Green, on Ev., sec. 469-b (16th ed. by Wigmore), it is said: ‘Where the impeachment consists in a charge of bias, or interest, or corruption there is value in showing a prior consistent statement before the time when the supposed bias, or interest, or corruption could have existed; for it thus appears-that his present testimony cannot be attributed to-bias or the like.’ But no such facts exist in the instant-.
So that we do not think that the exclusion of these letters was erroneous; but even if so, in view of the other facts of this case, the error was harmless.
(b) The refusal to give three instructions, offered by the plaintiffs, is also assigned as error. They present substantially the same question, and it is only necessary to quote one of them, which reads:
“The court instructs the jury that the plaintiffs in this ease allege a contract of employment between the defendant, Scott, on the one hand, and the firm of Moon & Pitts, on the other; that it is incumbent upon the plaintiffs, Moon & Pitts, to prove said contract as alleged; that they cannot allege a contract with the firm of Moon & Pitts and recover upon proof of a*436 contract with the plaintiff, Pitts, only; therefore, if the jury believes from the evidence that no contract with the firm of Moon & Pitts has been shown (the burden being upon the plaintiffs to show such a contract by a preponderance of the evidence) then they must find for the defendant Scott.”
Bach of these instructions is based upon the claim that the defendant never employed the plaintiffs, and directed the jury to find a verdict for the defendant. The refusal of each of them appears to us to be so plainly right that we deem it only necessary to say that under the facts in the case they were not only erroneous in directing a verdict for the defendant, but-also misleading because the evidence clearly showed, without contradiction, that Moon and Pitts were-partners; that the defendant accepted the services of Moon & Pitts in the litigation; that as a co-partnership they rendered these services; that with the knowledge, acquiescence and consent of the defendant they both conducted the litigation and both received partial payment on account of the fees due. While it is doubtless true that a client may employ one member of a co-partnership to conduct his litigation and exclude the other from any claim for compensation from him, because he is not employed, still the burden is upon one-who asserts such an unusual contract to prove it, and in this ease the letters and testimony of the defendant himself demonstrate that he had no such special contract with Pitts to the exclusion of Moon.
(c) The other error assigned which requires attention is that presented by the defendant’s tenth exception, from which this appears: Scott had testified that he had given Pitts his check for $375 for printing the record in the Horse Show Case, which was thereafter recovered as part of the costs in that ease, and that
The fact is that Scott had testified that no part of this money had ever been repaid to him, and the attorneys for the plaintiffs were mistaken in their contention that the plaintiff, Pitts, had testified that it had been so repaid.
Now, if the jury had not returned into court and asked this specific question, it would be here presumed that they remembered Scott’s testimony and also that Pitts had not denied the fact referred to; but inasmuch as the record shows that the jury had disagreed as to this testimony and wished to have the point cleared up; that instead of being cleared up counsel for the plain
Our conclusion, then, is to apply the rule which was applied in Washington & O. D. Ry. v. Westinghouse Co., 120 Va. 620, 89 S. E. 131, 91 S. E. 646. For the error of the trial court in refusing to have this dispute settled by the evidence before the verdict and at the time the jury asked for the information, the judgment must be reversed, unless the plaintiffs themselves correct the error. Our conclusion, therefore, is to reverse the judgment, unless the plaintiffs shall within sixty days from the date of our order elect in writing to relinquish $375 of the principal sum found by the jury (such relinquishment to be filed with the papers in the cause in the clerk’s office of the Circuit Court of Albemarle county as a part of the record). In that event the said judgment shall stand affirmed. If they refuse to relinquish this $375, then the judgment will be reversed and there shall be a new trial in accordance with the views which we have here expressed.
Affirmed conditionally.