63 Mo. App. 656 | Mo. Ct. App. | 1895
This is an action to recover $100 for certain services, which the plaintiff, as an attorney, rendered in the preparation of an abstract and brief, and the further sum of $10.50 clerk’s fees and express charges paid by plaintiff, all in a criminal ease which was pending in the supreme court, wherein the defendants were appellants. That the services were performed and the said $10.50 paid as charged, was admitted; but the defense was that they had been paid for. Briefly stated, the controversy arose out of about this state of facts: Along in 1890, plaintiff and other attorneys were engaged in defending these respondents in certain civil and criminal prosecutions then pending. Defendants were tried on the criminal chárge, found guilty and sentenced to confinement in the penitentiary; and from this judgment an appeal was taken to the supreme court. At this point there was a compromise of the civil case, defendants paying $1,500 in satisfaction of that demand. Plaintiff then presented an itemized account of his claim for legal services (amounting, it seems, to an aggregate of about $1,200) and demanded payment. After much dispute and contention as to the reasonableness of these charges, an agreement was arrived at, in accordance with which, defendants paid to the plaintiff $750, which with $50 theretofore paid, made a total of $800. Owing to plaintiff’s intimacy with the criminal case then pending in the supreme court, the defendants agreed to go forward and assist the other attorneys in preparing that case for submission to the supreme court. He was not expected to furnish an oral argument in that court, but simply to assist in getting up
I. The first error assigned is that the trial court admitted illegal and incompetent testimony, in that defendants were permitted to prove that the docket fee (so paid by plaintiff) was included in the settlement when said $.800 was paid, whereas no such issue was made in the pleadings. On the face of the record we have here, plaintiff is not entitled to make this point. We find in the abstract the evidence referred to, but there seems to have been no objections or exceptions made or saved in relation thereto. Not only this, but plaintiff himself tried the case on the assumption that this was an issue under the pleadings, and at the close of the evidence asked and secured from the court this instruction:
“2. The jury are instructed that it is shown by the testimony that plaintiff paid $10 for docket fee in the supreme court, and fifty cents on account of express charges, and they will find for plaintiff in said sum,*661 under the second count in plaintiff’s petition, with interest at the rate of six per cent from January 1, 1893; unless they shall further believe from the testimony that such sums were included in the amount paid plaintiff at Albany; and the burden of so showing is on the defendants. ”
II. While the witness Peery (an attorney) was on the stand, he was allowed, over plaintiff’s objection, to give his opinion as to the value of services which plaintiff had performed and for which defendants had paid on settlement the sum of $800. The' answer was that they were reasonably worth about $550. Plaintiff now insists that this testimony was irrelevant and incompetent under the petition and answer, and that it was prejudicial to his case.
Regardless, now, of the question as to whether or not such evidence was admissible under the pleadings, we think the plaintiff has likewise barred himself from any complaint on that account. Before this, the plaintiff while on the stand as a witness, had, with much detail, gone over the various services which he had performed for the defendants prior to the settlement wherein he was paid the sum of $800, and, in effect, had told the jury* that they were worth as much as $400 more than he had been paid in said compromise and settlement. The purpose, doubtless, was to show the jury that, as he had made a large reduction in the charges for services performed before that time, it was hardly reasonable to believe, that he undertook and agreed to yet perform other services, in the way of preparing the case for the supreme court, without further pay. Since, then, the plaintiff saw proper to place this kind of evidence before the jury, he can hardly be heard to complain that defendants followed him with testimony of the same nature.
IY. We notice the argument made by plaintiff’s-counsel, as to what they term the justice or injustice of plaintiff’s demand, the injustice of the verdict, etc. But the case has passed the stage when such matters can be considered. This discussion should have been, and doubtless was, submitted to the jury and the court below. A decision of the case rested entirely on a question of fact, to wit: What was the understanding and agreement between the parties? Was the $800 paid to the plaintiff by the defendants received for, and intended to cover, the legal services, etc., to be performed in the trial in the supreme court, or were such future services outside of that settlement, and to be paid for in addition to such compensation. There was substantial evidence on both sides of this controversy. The jury gave its verdict in favor of defendants; the trial judge heard the evidence and has refused to interfere ; it is therefore outside our province to disturb the judgment, on account of the weight of the evidence.
Being unable to discover any error of law, the judgment will be affirmed.
