Steenerson v. Waterbury

Collins, J. On the trial of this action, which was brought to recover for professional services alleged to have been rendered by plaintiff, as an attorney at law, at defendant’s request, the principal question for the jury was as to the power or authority of defendants’ agent to employ the plaintiff. There was a verdict in his favor, and a new trial was granted, on the ground, as appears from a memorandum attached to the order appealed from, that the testimony which was produced to establish the power or authority of the agent to employ the plaintiff was insufficient to charge the defendants with his alleged act. Whatever might be said as to the sufficiency of the evidence to support the verdict had defendant’s motion for a new trial been denied, and an appeal taken by them, it is apparent, on this appeal, that the evidence on the main question was not so manifestly and palpably in favor of the verdict as to justify us in declaring that the learned trial court abused its discretion when making the order appealed from. It must therefore be affirmed, and this renders it proper for us to briefly discuss two questions which presented themselves on the first, and which would undoubtedly be raised on the second trial, unless disposed of at the present time. 1. There was a general denial in the answer by which the allegations of the complaint as to the rendition of the services, and that they were performed at defendants’ request, were put in issue, and this denial was followed by a special averment that prior to the commencement of the action defendants had paid plaintiff in full of all demands, including that set forth in the complaint. The position of plaintiff was, and is, that, because of an inconsistency between the general denial and the special plea of payment, the latter controlled, [215] and it stood admitted on the trial that the professional services were rendered at defendants’ request. Under our system of pleading, a defendant may set up as many defenses as he may have; the only limit to this right being that they must not be inconsistent. Separate and distinct defenses are consistent when both may be true, and are only held inconsistent when the proof of one necessarily disproves the other. These allegations did not stand opposed to the extent that, if one should be established by testimony, the other would of necessity be proven untrue; for the fact might be that plaintiff’s services had been rendered without defendants’ request, and yet have been considered and taken into account in a subsequent settlement, at which they paid plaintiff in full of all demands. There exists no good reason why one should not be permitted to settle a claim for services which he regards as unjust, because no services have been required, without having his act construed to his prejudice. 2. Much of the testimony in respect to the character and extent of the litigation had or anticipated with Buse was properly received in the case; but it was error for the trial court to allow the plaintiff to show that Buse endeavored to retain him after he had been employed, as he claims, by defendants, and further to show what a reasonable fee would have been had Buse employed him, and had he conducted the defense which would have been required in case the proposed civil and criminal proceedings against Buse had been commenced. The plaintiff, if entitled to anything, must recover the value of the services performed in defendants’ behalf. This value cannot be increased, on the one hand, by the fact that he could have been retained on the other side of the litigation, or decreased, on the other hand, by the fact that his clients’ adversary made no effort to employ him; nor can it be measured by any estimate as to what would have been a reasonable fee had he been so employed. Order affirmed. (Opinion published 53 ST. W. Rep. 1146.)