Shirts v. Rooker

21 Ind. App. 420 | Ind. Ct. App. | 1899

Robinson, J.

Appellant appeals from a judgment in appellee’s favor on a claim filed by appellant against tfie estate of appellee’s decedent. Overruling appellant’s motion for a new; trial is assigned as error. Tfie claim is made up of various items, consisting of renting and looking after a farm from 1888 to 1891; money paid certain parties named for. tfie use and benefit of decedent; feed and care of a fiorse, pasture, and certain named services as an attorney. It appears from tfie evidence tfiat, during tfie time embraced in tfie claim, appellant was a member of a firm of lawyers wfio were more or less engaged in tfie service of decedent in a professional way. Tfiere is some evidence tending to sfiow tfiat tfiere was a final settlement by tfie parties in February, 1891. Appellee’s decedent died in May, 1896. Tfiere was no evidence to support a part of tfie claim, and tfiat part fias not been argued by appellant’s counsel in tfieir brief.

Complaint is made in tfiis court of tfiat part of instruction four given to tfie jury by tfie court of its own motion wfiicfi reads as follows: “If you find tfiat any item charged in tfie plaintiff’s claim herein is tfie same or any part of any’transaction had between tfie decedent and any firm of wfiicfi plaintiff was a partner, and that such transaction was a part of tfie firm business, tfie plaintiff cannot^ recover for tfie samé in tfiis action.” Tfie claim filed is not prosecuted by any firm, nor in tfie right of any firm. It purports to be personal transactions between tfie decedent and claimant. Tfie evidence shows tfiat appellant during tfie time covered by the items in tfie claim was a member of a firm of practicing attorneys, and tfiat some of tfie items in tfie claim are for professional services as an attorney. The instruction does not, in effect, tell tfie jury, as claimed by counsel, that appellant could not agree with tfie decedent to do anything in fiis individual capacity for the decedent concerning any matter of which appellant’s firm had charge, even with the consent of the other members of the firm. It is not to be denied that a member of a firm, with the firm’s consent, might contract as an individual in the business in which the-firm is engaged. And the instruction does not deny this right. It expressly refers to a transaction with the firm of which the claimant was a member, and to firm business. If appellant was a member of a law firm, and such firm -was doing the general law business of the decedent, the presumption would be, in the absence of any express contract to the contrary, that services performed by appellant as a lawyer were on behalf of the firm. And in such case the burden would be upon appellant to show an agreement between him and the decedent that such services were personal to him, and that he, and not . the firm, was to be paid therfor. This the court told the jury in the fifth instruction. This was not telling the jury, as argued, that before the value of services can be recovered, there must be an agreement between the parties that the services áre to be rendered. Where one is a member of a law firm, his legal services are presumed to be in tlie firm’s behalf; and, if he is acting in his individual capacity, the burden is on him to show that fact. The members of a law firm constitute one person in law, and the act of one in the course of the partnership business is the act of all. It was a question properly left to the jury whether appellant was at the times in question acting individually, or as a member of the firm. See Green v. Milbank, 3 Abb. N. C. 138. Thus, it is said in Bates on Partnership, section 441: “If the contract is within the scope' of the business, the mere fact that a: single partner is dealt with is immaterial, where not expressly on his individual credit, and the contract will be deemed to be with the firm unless the contrary appears.”

The fourth, fifth, and sixth reasons for a new trial relate to the admission in evidence of certain checks drawn by decedent in the year 1891, and payable to the firm of which appellant was at the time a member. It appears from the evidence that during the times covered by the items in appellant’s claim the law firm of which he was a member had done some legal business for decedent. We think these checks would tend to show the manner in which the parties did business, and, taken in connection with all the other evidence in the case, would give some light on the question whether the services mentioned in the claim were the personal services of appellant, or the services of the firm of which he was at the time a member. The theory of the defense was that appellant had been paid for all services he had rendered the decedent. The evidence showed that as a rule the parties were punctual in making settlements, and it was proper to show the business methods of the parties in other transactions of a similar nature. Even if we should admit that these checks were immaterial for any purpose, we could not say their admission in evidence was such error as would warrant a reversal of the cause.

The seventh reason for a new trial was striking out the testimony of a witness concerning a certain letter introduced in evidence. The letter was written by the firm of which appellant was a member, and was addressed to the decedent. It is in no sense ambiguous, and in fact the evidence stricken out was not an attempt to explain the letter, but was simply the statement of the witness’ conclusion that the contents of the letter had nothing to do with anything in this action.

The tenth reason for a new trial was the refusal of the court to permit a witness to testify that a certain check introduced in evidence was in payment for services other than those named in the check. Thé check is not ambiguous, and states that it is in full payment for certain services therein named. The effect of the offered evidence would be to contradict the terms of the instrument itself, and was properly excluded. For the same reason the offered evidence of the same witness as to certain other checks, as set out in the eleventh reason for a new trial, was properly excluded. Several of these checks were payable to the firm of which the witness was himself a member.

The twelfth reason for a new trial was permitting appellee, administrator, to identify, the signature of James I. Rooker, the decedent, to a certain contract. It is true, this is a proceeding in which an administrator is a party, and involves a matter which occurred during the lifetime of the decedent, and a judgment or allowance may be made or rendered for or against the estate which he represents, and he is a necessary party to the record; but, his interest is not adverse to the estate, nor is he an incompetent witness as to such matters in favor of the estate. Section 506, Burns’ R. S. 1894 (498, Horner’s R. S. 1897). See Walker v. Steele, 121 Ind. 436.

The thirteenth and fifteenth reasons for a new trial relate to the admission of certain contracts in evidence. These contracts were leases of decedent’s farms, executed by him in his lifetime. A part of appellant’s claim was for renting and looking after these farms. iThere was some evidence that appellant had nothing to do with these leases, but that they were prepared by the decedent. While the contents of the leases themselves were not material, yet we fail to see how their introduction could be harmful to appellant. If it was a fact that the decedent looked after the leases himself, it would tend to support appellee’s theory, that decedent gave his farms his personal attention.-

The fourteenth reason for a new trial was. the admission of a letter written to decedent by the law firm of which appellant was a member. The letter was read in evidence, and was afterwards all stricken out, except the first sentence. That sentence referred to the fact that appellant had written decedent on some matter before a letter from decedent on the same matter was received. The court, in admitting the letter, stated that it was admitted for the sole purpose of showing that appellant was in the habit of corresponding with decedent. It was proper for that purpose, and it might have some bearing on the question whether in these various transactions the decedent was dealing with the firm, or with appellant individually.

The sixteenth and seventeenth reasons for a new trial were the admission in evidence of a check drawn on the Indianapolis National Bank by james I. Rooker, and payable to appellaht’s law firm, Shirts & Vestal, and the admission of a note executed by decedent, and payable to the same firm. The check contained a stamp mark: “Indianapolis National Bank. Paid May 21,1891.” The objections urged to the admission of the check were that it had no indorsement, and no receipt, excepting the stamp mark; that there was no evidence as to whose stamp that was, or who put it on the check, and no evidence that it was presented for payment or paid. This check was dated May 21, 1891, for $267.91, and was payable “to note of Shirts & V., or bearer.” A note signed by the decedent, dated February 19, 1891, for $262.50 due ninety days after date, and payable at the Indianapolis National Bank, to Shirts & Vestal, was introduced in evidence. The note had been indorsed by the payees for collection to a Noblesville bank, and indorsed by that bank for collection to the Indianapolis National Bank. There was evidence that this note had been paid. There is no evidence that the bank held any other note executed by those parties, and, taking all the facts disclosed by the check and the note,, and the fact that the note had been paid, we do not think it a violent presumption, in the light of all the evidence in the case, that the check was given in payment of the note. The fact that the check was marked “Paid,” and was found among the papers of the decedent, who drew it, would raise the presumption that the check had been paid.

The next three reasons for a new trial relate to the admission in evidence of certain checks drawn by the decedent. As has been before said, these checks were competent as tending to show the manner of dealing between the parties, and we are unable to see how their introduction could prejudice the jury against appellant.

The twenty-first reason for a new trial was the admission in evidence of a letter written by appellant to decedent. The body of the letter has nothing to do with any of the matters in controversy. It tends neither to prove nor disprove any item of appellant’s claim. It does not appear for what purpose it was admitted. It could have been excluded, and probably should have been; but its admission in evidence is not reversible error, because it contains nothing that could possibly have prejudiced the rights of appellant. A postscript to the letter refers to a statement of decedent’s account inclosed, and says to the decedent that, if he has any items of account against appellant or son, to deduct the same from the amount of the account sent, and to send his note for the balance, payable at any time between the date of the letter, January 28, 1890, and .the next 25th of December. We think this part of the letter was clearly competent, under the issues formed.

The last three reasons for a new trial relate to the exclusion of certain letters written by the decedent to appellant, and offered in evidence. Each of these three letters relates to matters not embraced in any of the items of appellant’s claim. They had reference to a transaction, as appears from other evidence in the case, between the decedent and the firm of attorneys of which appellant was a member.

It is further argued that the verdict is not sustained by sufficient evidence, and is contrary to law. We have carefully read all the evidence, and can but conclude that there is evidence in the record upon which to base the jury’s verdict. There was no evidence to support some of the items of appellant’s claim, and as to the other items the evidence is conflicting. The record further discloses some evidence from which the jury could have concluded that, some years prior to decedent’s death, he and appellant had a settlement of their mutual accounts, and that at the time this claim was filed nothing was due appellant from thei estate of the decedent. Some of the evidence introduced on each side of the case may have been immaterial, but from the whole record, we believe a correct conclusion has been reached, and that the verdict of the jury should stand. We have examined all the questions presented by appellant’s counsel, and find no error warranting a reversal of the case. Judgment affirmed.