Christian v. Wight

Ellison, J. The best we can gather from the testimony in this case, there was no error on the part of the court in giving or refusing instructions. Numbers four and five were properly refused if for no other reason [169] than that of there being no evidence to support either of them. Number four states that if Martin “did not tell Christian that Wight had limited him in the amount he was to pay,” etc., whereas the uncontradicted evidence of Martin is that “ I told Christian what had passed between Wight and myself about the matters.” There is not a particle»of evidence before us that plaintiff ever said he would not act for Wight in selecting a jury, for less than one hundred dollars, and, therefore, there is nothing upon which to base number five. In this respect plaintiff complains that the bill of exceptions does not contain the evidence as presented at” the trial. We cannot entertain á suggestion of this .sort. The bill was made a part of the record as provided by law, and is regularly before us. We accept it as absolute verity. The second instruction given for defendant is attacked with much earnestness by plaintiff. But an examination of it in connection with the testimony back of it, satisfies us that the court’s action was justifiable in that regard. There was an evident purpose to hold defendant, though there was no express contract, by reason of his having accepted the benefit of plaintiff’s services without objection. Plaintiff’s instruction number two shows this. Defendant had directed Martin not to agree to pay more than thirty dollars, and Martin communicated this to plaintiff‘ and plaintiff refuses to accept such employment. Martin then says to him we, i. e., Martin & Priest, want you anyhow; plaintiff replies that this is another matter, that if they wanted him, he would go into the case. Now go to the length of charging defendant with knowledge of all that passed between plaintiff and his agent Martin, and what do we find ? Why, plainly, that he refused employment under the conditions prescribed by defendant, refused to contract with him, but on learning that Martin & Priest wanted him to enter the case, he replies “that was a different matter, that if w [170] e (they) wanted him he would go into the case.” The most that can be said in favor of plaintiff from this conversation is, that he at first refused the offer, because the fee was too small, but on learning it was the desire of the attorneys to have him in the case, he with that spirit common to lawyers of good standing, and with a kindly and accommodating feeling for- two of his professional brethren in the emergency of an approaching trial, concludes, for that reason, to engage to do service he otherwise would have refused. Under these circumstances defendant sees plaintiff perform services for him and does not object. If he had stood by and heard every word uttered between Martin and plaintiff the only rational conclusion he could have drawn would have been that, while plaintiff at first refused to accept employment for the fee mentioned, yet on learning that the other attorneys wanted him, he yielded and accepted that he would otherwise have rejected. It was but fair to defendant’s theory of the case to give the instruction; it was proper to do so. It would have been error under the evidence to have refused it. The judgment is affirmed. All concur.