14 Mo. App. 534 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This action was begun before a justice of the peace'
The statement of the cause of action was as follows: —
William Bosbyshell and Jno. C. H. D. Block.
As per order of Mason & Gordon, Attorneys,
To PIERCE BROS., Dr.
To printing 90 pages of brief at 70 cents...... . . $63 00
(Jase No. 917. N. J. Eairchild v. Masonic Hall Association, Wm. Bosbyshell, Appellant. Case No. 887. James J. Scanlan v. Masonic Hall Association, J. C. H. D. Block, stockholder, Appellant. St. Louis Court of Appeals, October Term, 1877.
This paper was indorsed as follows: —
“Messrs. Block & Bosbyshell, please pay the within account to Williamson-Stewart Paper Company.
“Pierce Bros.”
“ For value received, we hereby assign, sell, and transfer the within account to Williamson-Stewart Paper Company.
“Pierce Bros.”
St. Louis, March 2, 1882.
On trial anew, in the circuit court, the court, at the conclusion of plaintiffs’ case, instructed the jury that, on the evidence, plaintiffs were not entitled to recover, and there was a verdict and judgment accordingly.
S. B. Gordon for the plaintiffs, testified to the following effect: He is, and was, in 1877, an attorney at law,
Pierce, on behalf of plaintiffs, testified as follows: “I am a member of the firm of Pierce Bros., printers. About January, 1878, Mr. Samuel B. Gordon told me that he wanted me to make a bid on a brief. I went to see him about it, and, on examining the manusci’ipt, found that the brief would be quite a Jong one, and made him an offer to print it for seventy cents a page. He said, that, before going further, he wanted it distinctly understood that the payment was not to come out of the pockets of Mason &
The plaintiff also introduced in evidence Eule IX. of this court, which is as follows : —
‘ ‘ Counsel on either side, in any case, shall prepare and file four copies of a brief, containing, first, a clear and concise statement of the pleadings and facts shown by the record; second, an enumeration, in numerical order, of the points or legal propositions made or relied on, accompanied by a citation of authorities supporting each proposition. To this may be added an argument, or statement of reasons, illustrating the application of the authorities cited, or otherwise conducing to the conclusion advocated by counsel. Every such brief must be on file at least one day before the cause is called for hearing.”
There was no other testimony in the case.
The rule just set out has not been complied with by counsel for respondent in the present case, who has said nothing to us, either orally or in writing, in support of the action of the trial court in directing a verdict for defendant upon the above evidence.
It seems to us that the plaintiff made out a prima facie case, and was entitled to recover upon the testimony.
We conceive that it is denied, either on the ground that an attorney can not, without express authority, make his client liable for the expense of printing briefs ; or that he can not make two clients jointly liable for one brief, to be used in their two separate cases; or, that he can make his clients liable only for the expense of printing just so many briefs as may be required by the rule of court.
1. It is quite well,settled that an attorney has authority, by virtue of his employment as such, to do, on behalf of his client, all acts, in or out of court, necessary or incidental to the prosecution and management of the suit, and which affect the remedy only. Moulton v. Bowlcer, 115 Mass. 36. We have no doubt that this includes the power to have printed, at the charge of his client, such briefs or arguments as the attorney may judge advisable for the more convenient presentation of the case in an appellate court. It is a proceeding in the progress of the suit which the attorney may be supposed to consider beneficial to his client. We believe that it is the general understanding and common practice at this bar to have briefs for this court printed. Great inconvenience, and even loss, to clients might ensue, if the attorney were to be compelled to resort to his client at every turn to know whether or not he is willing to incur this or that expense involved in a proper protection of his interests in the lawsuit in hand. It may be that an attorney may make his brief unnecessarily long; it may be that his brief may even do harm to his client rather than good, and thus the client may be put to useless expense ; but an attorney may, in many conceivable cases, through indiscretion, negligence, or ignorance, so abuse his trust as to render his client liable for heavy damages ; yet such conduct
2. But it may be said that the attorney can not make his clients liable for the printing of more copies of a brief than are required in such cases by the rules of practice, and this is, indeed, said in the Louisiana case just cited. The case was this: In an action in which the city of New Orleans was plaintiff, the attorneys for the city, without consulting their client, called upon the city printer to print their brief. The printer printed over three hundred copies; two hundred and fifty of these were printed at the mayor’s suggestion, but without any authority from the city. No agreement was made in relation to the price of the work. The charge was for three hundred and twenty-six pages at $3.00 per page, or $978. There was judgment for $651.50, and the printer appealed. The supreme court affirmed the judgment, saying that the judgment of the district court had done ample justice to the plaintiff. Whatever may be said in the opinion, a reference to the case itself shows that it is no authority for the proposition that the attorney can bind his client for only just so many copies of his brief as the rule of the court requires.
In the present case it does not appear how many copies -were printed. No inquiry was made as to that by defend
3. Defendants, though parties to distinct suits, are made jointly liable for the briefs, which, from the character of the litigation, were equally available, and were actually filed, in either suit. We see no injustice in this. We can not conceive how either of the defendants can be prejudiced by this. If the liability was joint, it was, under our statute, a several
We can not agree with the learned judge of the circuit court in holding that the plaintiff was not entitled to go to the jury with the evidence introduced, and we think that the judgment should be reversed and the cause remanded. It is so ordered.