Carpenter v. Smithey , 118 Va. 533 ( 1916 )

Keith, P.,

delivered the opinion of the court.

Marvin Smithey brought an action of assumpsit against 'Carpenter to recover fees for his services as an attorney at law. The declaration contains the common counts and is accompanied by an itemized account containing very numerous items of credit and debit, which results in a balance due to the plaintiff of $2,307.90. The defendant pleaded non-assumpsit and filed his grounds of defense and notice of offsets. A great mass of evidence was introduced which resulted in a verdict and judgment for the plaintiff for $2,000, to which a writ of error was awarded.

Certain exceptions were taken by the defendant to the introduction of evidence, which we shall first consider.

The plaintiff went upon the stand to testify in his own behalf, and was called upon to state the nature of his services with respect to the item of $2,500, which appears in his account as of June 20, 1912, being the fee charged in the case of Carpenter v. Camp Mfg. Co. The plaintiff went on to make his statement with respect to the litigation between Carpenter and the Camp Manufacturing Company in which he had been employed. In this statement he gave his version of the contract between himself and Carpenter under which the services were rendered, and went into many details bearing on his right to recover, which for the purpose of the assignment of error we are now considering need not be more specifically stated. His examination had covered about twelve pages of the record and the witness had fully stated the terms of the contract under which he claims the services were rendered to Carpenter, when counsel for the defendant interposed and said, “We object to Mr. Smithey’s entire statement.” The objection was overruled and an exception noted, which is presented in plaintiff in error’s bill of exception Ho. 4.

In Norfolk and Western R. Co. v. Ampey, 93 Va. 108, 25 S. E. 226, this court said: “Objections to the admission or exclusion of evidence, or to giving or refusing to give instructions, should be brought directly to the attention of the trial court, and, if overruled, a proper bill of exceptions should be taken specifically and definitely setting forth the allegation of error and so much of the evidence as is necessary to render clear the propriety or impropriety of the ruling of the trial court: otherwise the exception, though noted at the time, will be treated,, by the appellate court, as waived or abandoned.” N. & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811.

In Washington, &c. R. Co. v. Lacey, 94 Va. 460, 26 S. E. 834, it is said that “Where evidence is offered, a portion of which is objectionable, and the other not, and the objection is general, it must he overruled. And so of two or moré ordinances, one of which is objectionable. The objection must point out specifically the objectionable features.”

It may be conceded, .therefore, that the evidence objected to contained matter which should have been ruled out, yet it was not brought to the attention of the court in a proper manner. That there is much in the statement of the witness which the court was asked to exclude which was pertinent to the issues to he tried cannot he questioned, and under the authorities which we have cited a general objection was properly overruled.

Bill of exceptions Ho. 8 has reference to an item of $1,000 in the defendant in error’s account. The plaintiff had testified as to this item, claiming that Carpenter owed him for a one-third undivided interest in a tract of land known as “Wood-lawn” farm. After the witness had testified quire fully as to this item, he was asked by the court: “Does Mr. Carpenter owe you anything?” Witness: “Yes, he owes $1,000.00 for my interest in that farm.” The court: “How does he owe it to you?” Thereupon counsel for plaintiff in error interposed an objection which the court overruled, and bill of exceptions Ho. 6 was taken by the defendant.

We think the evidence was relevant and tended to prove the issue joined between the plaintiff and the defendant, and the exception is overruled.

The plaintiff in error bases one of his assignments upon bills of exceptions Hos. 5 and 8, taken to rulings of the court. During the progress of the trial the defendant handed to the plaintiff who was upon the stand testifying in his own behalf, a copy of a bill which he had filed as attorney in the case of Carpenter v. Camp Manufacturing Company, and in which a fee of $2,500 was charged, and was asked to read the bill and state if it was the bill for which he charged this fee. To the introduction of the bill counsel for the plaintiff objected, unless the entire record was put in evidence. The court sustained the objection and exception Ho. 5 was duly taken.

In 3 Wigmore on Evidence, sec. 2110, it is said: “A judicial record, made up as it is of separate documents and entries representing the successive stages in the proceedings, is of all records the one which most requires the application of the principle of completeness; and it is to this kind of record that the judicial utterances already quoted (in section 2108) chiefly refer. Without considering the plaintiff’s statement of claim, the defendant’s statement of defense, the intermediate motions and orders, the verdict, and the later doings, it is impossible to ascertain what are the terms of the judgment which is to be proved and acted on.”

In the case before us it was especially necessary to an understanding of the situation that the entire record should be produced. The consideration of a part of it might have led to the greatest injustice. The plaintiff was suing for services rendered in the prosecution of that suit, which he had conducted upon a contingent féé conditioned upon the plaintiff’s success. There is evidence in the case tending to show that the result of the litigation was beneficial to the plaintiff, although he did not succeed to the full extent of the case made in the bill; therefore, it was necessary to the ends of justice, in order that the trial court and the jury might see whether or not there had been a substantial benefit to the plaintiff as a result of the litigátion, although the result fell short of the case made by the bill and the prayer for relief based upon it. We think there was no error in refusing to permit the bill to be read without the introduction of the complete record.

Objection Ho. 8 is, we think, sufficiently covered by what we have said with respect to bill of exceptions Ho. 4. The objection to the evidence is too general. It should have specifically stated the parts objected to and not have left it to the court to separate the good from the bad.

An exception was taken by the defendant to a remark made by the court in the presence of the jury to the following effect:

“The court: I think if he made the contract which Mr. Smithey has sworn to, I think he is entitled to the money if the jury believes it.”

At a subsequent day of the trial the court said: “Either on Wednesday or Thursday, when Mr. Smithey was on the stand, after he finished his statement, he madd reply to counsel’s opening statement, which defendant’s counsel moved to strike out of the record. I overruled the motion. I don’t know that I was right. I want to sustain the motion and want to say to Mr. Smithey that he can testify to any fact proven touching the statement made by counsel for the defendant which stands in lieu of the reply that he made on Wednesday or Thursday, and I strike out of the record his reply to the opening statement, which leaves him.now the right to reply to any matter which counsel touched upon in his opening statement.”

“Mr. Turnbull: In other words, you. put him back where he was, that he is allowed to testify to the facts before the jury ?”

Without undertaking to decide whether the remark made by the court constituted reversible error, we are satisfied that the subsequent action of the court was sufficient to efface any injurious consequences which the original remark may have caused.

We discover no merit in the seventh assignment of error and it is overruled.

After the evidence was all in, certain instructions were presented.

Instruction marked “A,” offered by the defendant in error, is not objected to. Instruction “B” is objected to because it is claimed there is no evidence to support it.

In C. & O. Ry. Co. v. Stock, 104 Va. 97, 51 S. E. 161, it is true we disapproved what'is known as the scintilla rule, which required the court to give an instruction if there was any evidence whatever to support it, although it might be compelled to set aside a verdict rendered in accordance therewith. But wherever there is evidence before the jury which would support a verdict upon a motion to set it aside, the court is obliged to instruct if requested so to do.

■ There is testimony tending to prove every fact upon which the instruction is predicated, and the law applicable to the facts, if found by the jury, is we think correctly stated in the instruction.

Instruction “0” given at the instance of the defendant in error, is also objected to upon the ground that it assumed the existence of a fact which should have been referred to the jury. We do not think the instruction is open to this objection. The petition says that “the court will readily see that this instruction is erroneous for the reason that the court, in giving this instruction, assumed that because your petitioner after-wards sold his farm for $12,000 that he had been benefited to the extent of $5,000.00 by virute of said litigation.” We do not think the instruction makes any such assumption. The jury were told that if they believed from the evidence that the defendant, Oarpenter, employed the plaintiff, Smithey, as his attorney to conduct on behalf of Carpenter the litigation between Oarpenter and the Camp Manufacturing Company with respect to the timber and railroad rights claimed by the company upon the tract of land known as the John W. Harrison farm, “and that the defendant agreed to pay the plaintiff, as a fee contingent upon the result of said litigation, one-half of the difference between the sum of $7,000.00 and whatever sum might be realized by the defendant on a subsequent sale of the said land, in excess'of the said sum of $7,000.00,”—that is to say, if the jury found certain facts, and if as the result of the existence of those facts the defendant had agreed to pay a certain fee, he was responsible by force of his agreement: and in that we think there was no error. We shall have more to say about the agreement whén we come to consider the motion to set aside the verdict as contrary to the evidence.

The petition assigns as error the refusal of the court to give instruction Ho. 4. It is only necessary to refer to the reported case of Carpenter v. Camp Mfg. Co., 112 Va. 300, 71 S. E. 559, to show that this instruction should have been refused, if for no other reason, because it was calculated to mislead the jury. That suit was decided in the circuit court in favor of the Oamp Manufacturing Company. Oarpenter appealed, and the decree was reversed in this court. The contention of the Camp Mamifactiiring Company was that it had an indefinite time, upon the payment of interest on the agreed price, within which to cnt and remove the timber. Carpenter claimed, it is true, that all right to the timber was forfeited by a failure to remove within the five years. This court took a middle ground and held that the removal of the trees must take place within a reasonable time after the expiration of the fixed period. That this was favorable to Carpenter is, we think, beyond dispute.

During the progress of the litigation Carpenter sued out an injunction, which was afterwards dissolved, and Carpenter was held to pay $800 as damages for improperly suing out the injunction, and by instruction Mo. 6 the court was asked to tell the jury that Smithey should be required to pay one-half of the sum awarded as damages. That the parties might have entered into such an agreement is true, but we are unable to discover any evidence in this record of their having done so, and the instruction was, we think, properly refused.

Instruction Mo. 10, which refers to the item of $1,000 in the account filed with the declaration, was, we think, properly refused, because it is a partial and inadequate statement of the facts upon which the plaintiff based his claim, and directs the jury to find for the defendant, when we have often held that to justify such a direction every material fact bearing upon the instruction must be brought to the attention of the jury.

Upon the whole case, we are of opinion that. instructions “A,” “B,” “C,” and “D,” asked for on behalf of the plaintiff and given by the court, and instructions 2, 5, 1 and 9, given at the instance of the defendant in the court below, sufficiently covered the law of the case, and that there was no error in refusing to give instructions Mos. 1, 4, 6, 8 and 10.

The plaintiff in error seems to rely in great measure on a contention he makes, that the declaration contains only the common counts, while the plaintiff in the court below, if entitled to recover at all; must do so by force of the contract between him and Carpenter, which should have been pleaded in a special count, and in support of this proposition he cites Brooks v. Scott, 2 Munf. (16 Va.) 344, the syllabus of which states that, “In an action of general -indebitatus assumpsit, for services rendered as an overseer, or of quantum meruit for like services, the plaintiff cannot give in evidence proof that the defendant had employed him as an overseer and was to pay him a certain quantity of tobacco. In such case he should declare upon the special agreement.” Judge Cabell, in the course of his opinion, says: “It is true that with respect to debts for work and labor, or other personal services, the rule is, that, however special the agreement was, yet if it was not under seal and the terms of it have been performed on the plaintiff’s part, and the remuneration was to be in money, the party may declare either specially on the original executory agreement, or in indebitatus assumpsit, on the express promise to remunerate (if there was one), or on the promise which the law implies on the execution of the agreement. But this rule, so far as it relates to the indebitatus assumpsit count, has never been carried farther than to those cases where the remuneration contemplated by the parties was to be in money.” And that case went off upon the proposition that the remuneration was to be in tobacco.

In B. & O. R. Co. v. Polly, Woods & Co., 14 Gratt. (55 Va.) 448, it is said that “Indebitatus assumpsit will lie to recover the value of work done under a special contract, if it be fully executed on the part of the plaintiff, and nothing remain to be done under it but the payment of a sum of money by the defendant. The existence of this state of facts raises an implied promise to pay the money.”

That is precisely this case. If the testimony of the defendant in error is to be believed (and his credibility is wholly for the jury), he had rendered the services which he had promised to perform and nothing remained to be .done, but the payment of the compensation in money.

Considering the testimony in the case.as upon a demurrer to the evidence, we find that it is quite sufficient to sustain the verdict. The criticisms made of it go rather to the credibility of the witnesses than to the probative force of their testimony if it be accepted as true. The contract of employment is clearly and succinctly stated by the defendant in error in his testimony. “My first fee,” he said, “was based on .a contingency, and the second fee was based on a contingency. Here is my agreement with Mr. Carpenter. I had done all this, and had not received a penny in the way of compensation. He said, ‘All you can get over and above $7,000, whether by sale of the plantation or out of the benefits accruing to me, all over $7,000 I will pay you.’ He was to pay me one-half of all over $7,000. I went ahead and pushed that case with all the vigor of which I was capable.”

Instead, therefore, of leaving the jury to weigh testimony as to the value of the benefits which Carpenter received from the services of Smithey, the parties themselves, as it were, liquidated the value of the services and established a plain and simple test by which their value was to be determined and ascertained— that is, the value of the Harrison farm, subject to the incumbrances resting upon it by virtue of the timber contracts, was estimated at $7,000, and in case of its sale all above that sum was to be divided between Smithey and Carpenter. Carpenter’s view of the contract is very different, but the jury heard them both testify and accepted Smithey’s statement as true.

Another point of divergence between the testimony of the plaintiff and that of the defendant is with respect to the employment of counsel to aid the plaintiff in the litigation which he was employed to conduct. On behalf of Carpenter it is earnestly contended that additional counsel was employed by Smithey because he found himself unequal to the task which he had undertaken, while Smithey, on the other hand, testified that the additional counsel was employed by Carpenter of his own motion, and that he (Smithey) had nothing to do with it. And so -with other minor contentions, which need not he specifically stated; the record shows a conflict -of evidence along the whole line between the plaintiff and the defendant. All these differences were determined by the verdict of the jury, who both saw and heard the witnesses, in favor of Smithey.

Upon the whole case, we are unable to discover reversible error, and the judgment is, therefore, affirmed.

Affirmed.