Mosgrove v. Golden , 101 Pa. 605 ( 1882 )

Mr. Justice Trunkey

delivered the opinion of the court, December 30th 1882.

One of the members of a partnership to whom the others have transferred their interests in the partnership property and claims, cannot sue and recover a debt which was owing to the firm, in his own name: Horbach v. Huey, 4 Watts 455. Therefore, when a person brings suit for the value of his services rendered to the defendant, he cannot join and recover in such suit, a debt owing to a partnership of which he was a member for similar services, although the debt was transferred to him before commencement of the suit.

In this action, E. S. Golden is plaintiff, and the only statement of his claim is, that-he seeks “ to recover for professional services and counsel rendered by him to James E. Brown about his business generally, and disbursements therein, for a number of years prior to his death.” And the answer of the defendants is, that they “ are uninformed as to the correctness and legality of such claim and deny the same.” In the agreement for entry of the suit the parties stipulated that the “ suit shall be deemed to be depending in like manner as if the said defendants had appeared to a summons.” The claim was indefinite, stating no amount of demand, nor date of beginning or end of service. It is neither a declaration, nor a statement under the Act of 1806. Prior to the Act of March 14th- 1872, P. L. 25, probably the verdict could not have been sustained. That Act provides that no verdict shall be set aside for want of a declaration or plea, but the court may at any time direct the filing of a declaration and the entering of a plea which shall make the pleadings and record conform to what was tried before the jury .and found by the verdict. A declaration conforming to what was tried, would show a claim for services rendered the late James E. Brown by E. S. Golden individually, by Golden & Neale, and by Golden & Patton, together, covering a period of twenty-five years. The case must be disposed of as if such declaration had been filed, and the pleas entered under which the defences set up at the trial would have been heard and considered.

After remarking that the plaintiff claimed to recover the value of services for a period of twenty-five years, the court instructed the jury that if he was entitled to recover at all it was for the whole services as a whole, and that the defendants could not take advantage of the statute of limitations because it had not been specially pleaded. Had the principle which determined the case of Horbach v. Huey, supra, been heeded, in absence of evidence that Brown had contracted with Golden to pay him the debts owing by Brown to Golden & Neale, and Golden & Patton, the plaintiff would hardly have claimed to recover said debts in this suit. He cannot join debts which lie cannot sue for in his own name with one which he could.

' As no declaration had been filed, ground had not been laid for .a plea. The record shows no claim for a debt barred by the statute of limitations; hence, there was no reason for specially pleading it. It was well said by the learned judge of the common pleas that “ the law aims at the settling of men’s disputes unencumbered with technicalities.” But if the plaintiff set up a claim for services extending over a quarter of a century, the defendant shall have tiie benefit of a statute of repose and quiet, to defeat stale claims against dead men’s estates as living men could have when they have lost the evidence of settlement or payment. Where parties go to trial without pleadings, this act is not a waiver of a statutory defence to a claim as proved. Such defence is not technical, is not merely formal; it is legally meritorious. Otherwise this old statute ought to be repealed. It was the duty of the court to hear any competent evidence to rebut that adduced by the plaintiff, and to affirm the legal propositions requested by the defendants to which they would have been entitled had the cause been put at issue by proper pleadings. If by reason of surprise the plaintiff was likely to suffer he could have taken a non-suit; and the court has power, when justice demands, to withdraw a juror and continue the cause.-

The statute of limitations does not begin to run against the claim of an attorney for professional services so long as the debt which he seeks to recover for his client, remains unpaid: Foster v. Jack, 4 Watts 334. It runs against such claim as soon as the services are finished, and the relation of attorney in a litigated case will not prevent the claim for services generally from being barred by the statute, though it may for services rendered in and during the progress of that particular case. “ Services rendered in any stage of the conduct of a single suit may well be regarded as rendered in pursuance of the same contract, but advice or services at different times and respect-. ing various matters cannot.” When an attorney advises or renders services respecting some matters of business, it does not prevent the statute from running against his claim for other finished services: Hale v. Ard, 48 Fa. St. 22. The doctrine of that case accords with Lichty v. Iiugus, 55 Id. 434, for Hugus’ claim was for services in a single suit.

When the firm of Golden & Npale was constituted and the relationship of attorney and client between them and Brown began, Golden had a right of action against Brown for his prior individual services. It is a familiar-principle that the statute begins to run when the right of action is complete. That the statute began to run against the individual claim of Golden Avhen tlie services of tlie firm commenced, and that it began to ran against a debt OAving to Golden & Neale, March 31st 1871, is too clear for doubt.

For services in a large number of suits, and for some other services, the plaintiff Avás paid in full. He gave receipts particularly specifying the service, the last bearing date July 9th 1880. In some instances he sent his account with request for immediate settlement, the last is dated June 24th 1878. These receipts tend to show that the parties contemplated prompt payments for any particular service, and should be considered with other evidence respecting the demand in this suit. The plaintiff avers that he “ had been the general and legal adviser of Mr. Brown, for over twenty-five years; that his employment Avas not limited nor affected by lapse of time, nor obstructed by the commencement or ending of years.” There Avas no evidence of an express agreement. Mr. Brown’s business Avas large and varied and intricate, and the plaintiff was his trusted legal adviser and counselor. Although the plaintiff disclaims an implied hiring by the year, his witnesses called to prove the value of his services, estimated that value by the year. It Avas quite natural they should. When men are employed without an express contract and continue in service for a long time, it is commonly understood that the hiring is by the year, unless the circumstances indicate a less period. None Avould infer from the fact that an agent, or bookkeeper, or salesman had continued in the service of his employer half a lifetime that he had no right to demand and sue for past service until the end of his employment. In case of such long continued service the statute would bar a claim for all outside six years immediately before commencement of the action, unless there was evidence to take it out of the operation of the statute. Corporations, and many natural persons, employ attorneys to advise and counsel in all their business. For such service the attorney is entitled to payment, when there is no express contract, within a reasonable time; this is implied, and a reasonable time would not exceed a year. The statute bars the claim of an attorney as it does the claims of other persons when his services may be measured in a similar way as the services of others. It does not begin to run against his claim for conducting a suit until the end of his service in that case; nor Avould it against his claim for other special service until it was finished. And if any other person be employed to do a specific thing and a long time elapses in the doing of it, the statute does not begin to run against his claim until the work is completed. An attorney may recover for advice and counsel rendered to the defendant, upon the implied contract; so may a man avIio keeps books, superintends a mill, or does other business for another; and there is no reason why one should be excepted out of the operation of the statute by judicial authority, when all alike are within its provisions.

The first, third, and fourth assignments of error are sustained. That portion of the charge which is the subject of the third assignment, undoubtedly was, and ought to have been, understood by the jury as an instruction that the defendants could not have the benefit of the statute of limitations because it had not been pleaded. It follows that the answer to the defendant’s fourth, fifth, and sixth points was at once an affirmance of the propositions,, and an instruction that they should not be applied in the determination of the case. So far as those points are consistent with the principles hereinbefore stated, they should have been affirmed without such instruction;

The plaintiff, defendant in error, urged that the first four assignments ought not to be considered because an exception to the general charge is not allowed by the rules of court in the county of Armstrong. In fact, the court sealed a bill of exception to the charge, and this places it in the bill of exceptions, and we are bound to consider the alleged errors. It is frequent that judges seal a bill to the whole charge in districts having similar rules, for the judges are generally willing to aid counsel in their efforts to have a review of any supposed error. And if they were not, counsel would soon avail the statute, and bring the whole charge into the record in every case to the end that it may be reviewed without exception being noted or sealed.

James Mosgrovc’s letter to Neale and William Pollock’s entering into the recognizance, evidence that the writ of error was taken out by their authority. They have not discontinued the suit. Nor is their certificate, dated October 31, 1882, “ a motion to quash the writ of error but it is one of the many things in the proceedings showing the difficulties in their position. On one hand they are bound to faithfully perform their duties as administrators of the estate; on the other, as. is manifest, they believe the plaintiff’s demand is just. As the widow and legatees or heirs protested against acquiescence in the result of the trial, and urged that a writ of error be purchased, it was at least prudent to comply with their request. A judgment obtained against administrators, in some circumstances, will not protect them in suffering the judgment to stand, and paying it out of moneys of the estate. "We are of opinion that there is no cause for quashing the writ.

Judgment reversed, and venire facias de novo awarded.