Levinson v. Sands

Mr. Justice Dibell delivered the opinion of the Court. The third instruction given at the instance of the plaintiff told the jury defendant defended on the ground plaintiff was to perform the services for nothing, and unless defendant had established that defense by the greater weight of the evidence, they should find for plaintiff. The defense in fact was that Sands rendered these services in order to show Levinson his ability as a trial lawyer, and under an arrangement between them that if Levinson should be satisfied with the ability Sands displayed upon said trial, he would give Sands employment in his oifice; that Sands was not hired, and did not render the services as an employe or hired attorney, but that he was permitted to make the opening speech and examine several witnesses as a favor to him and as a step tending to the permanent employment with Levinson which Sands was then actively seeking. This is very far from an agreement to render the services for nothing. In Gorrell v. Payson, 170 Ill. 213, a suit to recover fees for legal services, a similar instruction was condemned because it ignored evidence for the defense tending to show plaintiff agreed to render the services for no other fee or reward than a contingent fee in another suit not then tried; and also because it ignored evidence that the services were rendered for his expenses and the opportunity to make a reputation in Chicago, to which place he wished to remove; and it was held error to characterize such services a,s “ a gift or gratuity ” in an instruction. As the apparent preponderance of the evidence was with the defendant on this subject, we think said third instruction misled the jury. Instruction number five, given at the request of plaintiff, told the jury if they found for plaintiff, they should allow him what they found from the evidence his services were reasonably worth “ with five per cent interest thereon from the time of the performance of such services.” Under our statute plaintiff was not entitled to interest unless there Avas not only money due plaintiff, but it had been withheld by defendant “ by an unreasonable and vexatious delay of payment.” This was a question for the jury. Even if they found for plaintiff, yet if they also found there had been a real misunderstanding of the arrangement between plaintiff and defendant, and that defendant honestly believed he did not owe plaintiff for such services, and that plaintiff never asked or claimed any pay till a feAV days before the suit was brought, as they might have found from this evidence, then they would not have been justified in awarding interest. The court erred in withdrawing this question from the jury. The verdict included $20.30 expressly allowed by the jury as interest under this direction. Sands called several attorneys who testified the usual, ordinary and customary compensation for such services as he rendered in said case would be $25 per day. When said services were rendered Sands had been a member of the bar a little over two years, and had tried about ten cases in courts of record. On cross-examination Levinson sought to ascertain from said witnesses whether they regarded the sum they had named as the usual and customary compensation of an attorney having the limited experience just stated. The court sustained objections to all such inquiries. We think this was a legitimate cross-examination of said witnesses. Foster, an attorney, so testifying for Sands, also testified on direct examination that he was one of the attorneys on the opposite side of the said case of Levy v. Noel at said trial, and that he prepared the case for trial; took an active part in its trial, and participated in the argument for a new trial; and that he charged $50 for his services in that case. On cross-examination Levins'on asked him if he considered $50 a usual, customary and ordinary fee for the services rendered in that case, but the court sustained an objection thereto. We think that after Foster had given the testimony above stated on direct examination, Levinson should have been permitted to make this inquiry upon cross-examination. The judgment of the court below is reversed and the cause remanded, with directions to award a new trial. Reversed and remanded.