Shakespeare v. Baughman

Hooker, J. The plaintiff, a lawyer, recovered a verdict and judgment for professional services, rendered upon an alleged agreement to obtain the appointment of a guardian for an incompetent person for the sum of $700, $100 of which he admitted receiving. The case went to the jury upon the single question whether the contract alleged was proved. Counsel for the defendant attempted to cross-examine the plaintiff in relation to the amount and details of the work done. He also asked the plaintiff if he had tried contested cases frequently in the last 15 or 16 years. But the court sustained objections to the questions asked upon these subjects. It is said that this testimony was admissible, upon the question of the probability of the alleged contract. The court was asked to charge the jury that, unless the minds of the parties met upon the alleged contract, there could be no recovery. This request was given, but the judge gave the jury to understand that the minds of the parties met upon that contract, or upon the one testified to by the defendant. What he said was equivalent to saying that there was no opportunity for the application of that rule, and he might as well have omitted that portion of the charge as to thus modify it. There was evidence of talk that the defendant was willing to pay $200 to have a guardian appointed, and he thought some of the other heirs (of whom there were six) would be willing to do so. Shakespeare testified that there was a talk of 'an hour or more, and it appears that one of the other heirs was present on one occasion. We cannot say that there was no opportunity for a misunderstanding, and therefore think that the case should have been submitted to the jury upon that question. Constable v. Lefever, (Sup.) 21 N. Y. Supp. 38; Barney v. Fuller, 133 N. Y. 605. The defendant sought to show by the cross-examination-mentioned that the plaintiff was a lawyer of limited practice and experience, and that the labor performed was light in. comparison to the alleged contract price. As [553] counsel suggested, this court has recognized the propriety of permitting a defendant to show known inadequacy of consideration for the purpose of corroborating a defendant where the parties dispute as to the terms of a contract. Thus, in Campau v. Moran, 31 Mich. 282, it was said: ‘ ‘ When the parties were thus distinctly at issue upon the terms of the contract, evidence that the cost of performance of such a contract as the defendant set up would he greatly in excess of the contract price would certainly afford some reasonable ground for believing that defendant is in error on the facts. We can very well conceive of cases in which such evidence might be very forcible,— much more so than it could possibly be in this case.” The same view was taken in Richardson v. McGoldrick, 43 Mich. 476. That was a case where the two parties were in conflict as to the terms of the contract, and Mr. Justice Campbell said: “In such a conflict of evidence between the only two persons knowing the facts, corroborating circumstances may very fairly be regarded.” ■ Counsel cite also the cases of Misner v. Darling, 44 Mich. 438, and Banghart v. Hyde, 94 Mich. 49, where this rule is applied. It is noticeable that these are cases where the parties disagreed, and there was no other witness to the contract; and, as said by Mr. Justice Long in the latter case, the evidence bears on the question of credibility. It will also be noticed that in Campan v. Moran, supra, the right to such testimony is based upon a conflict of testimony between the parties, and great inadequacy of consideration. Mr. Justice Grant said in Short v. Cure, 100 Mich. 420, that “such testimony is admissible only in cases where the difference in value is so great as to be beyond the range of a fair difference in judgment.” While this court has been careful to limit such proof to cases where there was irreconcilable conflict between the parties upon the question, which all of those cases [554] show, it has never distinctly held that such testimony was inadmissible in a case where one of the parties was corroborated by other witnesses to the making of the contract; and we are inclined to doubt that an arbitrary rule of that kind should be laid down. Counsel cite cases which do extend the rule. Thus, in Minnesota it does not seem to depend upon a want of corroborating witnesses. Saunders v. Gallagher, 53 Minn. 422; Schwerin v. De-Graff, 21 Minn. 354. Johnson v. Harder, 45 Iowa, 677, seems to imply that great caution should be used in admitting such testimony, but does not limit it to cases where the parties only testify to the terms of the trade, as several witnesses were produced in that case. The case of Barney v. Fuller, 133 N. Y. 605, is much such a case as this, where evidence of the value of the services was given; but it does not clearly appear that the value of the services actually rendered, as contradistinguished from those agreed upon, was proved. Here, if this kind of testimony was admissible at all, it would have been competent to show what the value of the services agreed upon was. This was not exactly what the' question sought to do, the inquiry being directed to the services actually rendered in accomplishing the promised result. We may take judicial notice that, the contract being to accomplish a certain thing, the services required might depend upon the nature of the opposition; and it is not unreasonable to suppose that parties contracting to secure a certain result in legal proceedings to be commenced would contract with a view to the probable, if not possible, contingencies. Evidence of the value of the services contemplated, taking consideration of the contingencies, rather than of those actually found necessary, would bear upon the question, the latter being likely to throw very little, if any, light upon it. Were the element of uncertainty out of the contract, the services actually rendered and those agreed upon might be the same, and the many cases cited would be applicable. See Cornell v. Markham, 19 Hun, 275; Cornish v. [555] Graff, 36 Hun, 160; Knallakan v. Beck, 47 Hun, 117; Sturgis v. Hendricks, 51 N. Y. 635. The exclusion of the answer to the question asked was not, in our opinion, erroneous. We attach no great importance to the number of cases that had been tried by the plaintiff. There is nothing to indicate that the defendant knew anything about his qualifications, but rather that he did not, and therefore the answer, whatever it might have been, would not have increased the probability of the defendant’s version. For the error mentioned, the judgment is reversed, and a new trial ordered. The other Justices concurred.