Cooke v. Plaisted

Mobtdk, J. The plaintiff seeks to recover for services performed and disbursements made for the defendant as an attorney at law. The services began in connection with an assignment made by the defendant for the benefit of his creditors, in which the plaintiff was one of the assignees or trustees. The account, which is a long one, includes, however, only one item in which a charge is made for services as assignee or trustee, and that embraces also services rendered as an attor [382] ney. It fairly may be said, therefore, that the action relates to the plaintiff’s services and disbursements as an attorney at law for the defendant. The answer sets up various matters in defence, and there is also a declaration in set-off. The jury returned a verdict for the defendant on the declaration in set-off. At the trial the plaintiff excepted to the admission of certain testimony and the refusal of the presiding judge to give certain rulings requested, — fifteen in all. Of these, one, the fourteenth, was waived at the trial, and the tenth, twelfth, and fifteenth have not been pressed, and we therefore treat them also as waived. The case is here on the plaintiff’s exceptions. Not all of the evidence is reported, nor all that is material to the questions raised. The account, as already observed, is a long one, and the items relate to many different matters. It is manifest that the presiding judge could not be required to instruct the jury in regard to each item in the account, nor in regard to all of the various aspects in which it was possible that the jury might view the different items. What he was required to do was to state for the guidance of the jury the rules of law in regard to the right of an attorney to recover for services and in regard to the defendant’s liability therefor, and what it was necessary for the plaintiff to show in order to maintain his action, accompanied by such explanations and references to the nature of the services rendered and the relations of the parties and the matters set up in defence, including the declaration in set-off, as would enable the jury to understand and apply to the case before them the rules thus laid down. And this, it seems to us, is what the presiding judge did. Having thus instructed the jury he could not be required, we think, to instruct them particularly as to the various supposable aspects in which the plaintiff might have acted as attorney for the defendant in connection with matters relating to the assignment and the trust created thereby, and to his right to recover reasonable compensation for services so performed. What has been said above applies to the first five requests. See Hicks v. New York, New Haven, & Hartford Railroad, 164 Mass. 424; Moseley v. Washburn, 167 Mass. 345. We think also that the eighth and ninth requests were properly refused. The fair import of the charge was, and we [383] think that the jury must have so understood it, that if the plaintiff was employed as attorney by the defendant, and performed services for him in that capacity in relation to any matters, he was entitled, in the absence of any special agreement, to a reasonable compensation therefor, taking into account the nature and importance of the services rendered. There was no contention on the part of the defendant, so far as the pleadings and exceptions show, that to the extent to which the plaintiff’s services and expenditures as attorney related to property covered by the assignment he was obliged to resort to such property for payment. We think also that the eleventh request was properly refused. There was no claim on behalf of the defendant that he was not liable for services rendered in connection with the Robson suit, if they were in whole or in part for the benefit of others. It would seem, though we have not all of the evidence before us, that there was no real dispute; that the trust was substantially terminated in January, 1890, though the defendant testified that he had never been informed of any termination of it. How a trust could be terminated, which was the subject of the seventh instruction requested, was therefore immaterial, and that request was properly refused. The sixth request, in relation to set-off, was also properly refused. For the money which he had himself received and with which he had credited the defendant the plaintiff was severally and personally liable and not jointly with Fowle, and as the case was left to the jury by the presiding justice the instruction requested became immaterial. The plaintiff has argued upon his brief the question of the competency of the auditor’s report. But the exceptions do not show that any objection was made to its admission, or exception taken. We see no valid objection to the admission of testimony relating to the foreclosure proceedings and to the deed under the power contained in the mortgage. The plaintiff had already testified to the foreclosure proceedings, and his services in regard to them were the subject of one or more of the items in' his account. The deposition of Dr. Cutter was clearly competent. The answer in regard to what Fowle said was admitted as tending to contradict Fowle, and was admissible for that purpose. No [384] specific objection seems to have been taken to any other questions or answers. The objections to the testimony of Dr. Bart are not argued on the plaintiff’s brief, and we treat them as waived. ¡Exceptions overruled.