Jones v. Fitzpatrick

1. Charge. — The charge of the Circuit Judge in this case held not to be injurious to the plaintiffs. 2. Experts — Evidence—New Triad. — The testimony of experts is merely the expression of opinions, and it is not error in a Circuit Judge to refuse to set aside a verdict, because the amount found by the jury was much less than the experts (the only witnesses examined as to the value of services) thought the services were worth. 3. New Triad — Circuit Judge. — A motion for a new trial, upon the ground that the verdict is against the preponderance of the testimony, is addressed largely to the discretion of the Circuit Judge, and it is not error for him to refuse to substitute his own view of the evidence for that taken by the jury. 4. Circuit Judge — Jury—Attorney.—It is not error in Circuit Judge to hold that the jury are the supreme judges of the value of services rendered by an attorney. 5. Jury — Experts.—The jury are not bound to take the opinion of expert witnesses as to the value of services rendered by an attorney, but may rely on their own judgment. 6. New Trial — Relationship oe Jurors. — A motion for a new trial, on the ground that some of the jurors were related to one of the parties, must be based on affidavits served before motion. 7. Query — Appeal—Jury.—Can a respondent in a jury case have a judgment sustained on any ground not submitted to the jury?

Action by Ira B. Jones and P. Y. Williams, partners practicing law, against John H. Fitzpatrick, as guardian of Mary Kibler, to recover a fee for foreclosure suit. The following is the charge of the Circuit Judge: This is a suit brought by Jones & Williams, plaintiffs, against John H. Fitzpatrick, as guardian of Mary A. Kibler, the plaintiffs claiming that Fitzpatrick, as guardian, owes them a fee for professional services as lawyers, a fee of $150, for the foreclosure of the Massey mortgage. The parties. both agree that the work was done, that the mortgage was foreclosed. There was some litigation in connection with it in the Court; a trial had, a verdict or decree had, and a sale was made and the money realized as you have heard. The contest is as to whether a fee was to be paid for that work or not, the plaintiffs claiming that they are entitled to $150 as a reasonable fee for that work, in comparison with work of the same kind; that that was a very reasonable fee; that they have been paid nothing for it, and that they are justly entitled to that amount for their services. The defendant, Fitzpatrick, admitting the services, alleges that Jones & Williams foreclosed that mortgage and did all the work in connection with that foreclosure suit, under a general contract made with him in 1887 by 'Mr. Jones, one of the firm of Jones & Williams afterwards, but at that time by himself, by which he was to attend to all the business growing out of the investing of the money of Fitzpatrick’s ward, and any litigation that might arise out of those investments, such as foreclosure of the mortgages. The defendant sets up that general contract, and says that under that contract it was agreed that nothing was to be charged by Mr. Jones; that Mr. Fitzpatrick was not to pay any court costs, the money was to net him ten per cent., exclusive of court costs, he was not to pay any court costs at all, no expenses of litigation. Now, that is the contract set up by Mr. Fitzpatrick, and as to that, of course, he assumes the burden of proof. He is bound to show you, by a preponderance of the testimony, that that contract was made. You alone can settle the matter. Mr. Jones denies that any such contract ever existed; Mr. Fitzpatrick asserts as positively that it did exist. In settling that, I don’t think it necessary that a jury should pronounce one of those two men as testifying falsely and the other truthfully. The jury is not called upon to decide cases between false witnesses and truthful witnesses, so much as between people who testify to their best recollection; and jurors know that the memory of man is not always trustworthy, and that the purest, most truthful men may testify under a mistake, and a jury that hears a case such as this has to settle which of two men, each one testifying to the best of his knowledge and belief, has the best recollection of the circumstances he testifies to. To repeat: it is not necessary to consider one or the other witnesses, in a case like this, as testifying to lies. Whatever your verdict may be, on whichever side you may find, it would not mean necessarily that the other side failed, because he had testified falsely. The plaintiffs, the firm of Jones & Williams, seek the value of the services for work done, alleging that there was no contract. Mr. Fitzpatrick says there was a contract. Now, a contract is an agreement between two or more persons, either in writing or by word of mouth, equally binding upon both parties, the contracting parties; but there can be no contract unless there has been a mutual understanding between the parties. Their minds must meet — that is to say, no one person can establish a contract, because he understood so and so to be the case, if the other did not; there could be no contract unless both understood at the time that such were the terms of the agreement; and the one who alleges the contract must prove it by the preponderance of the evidence, by the greater weight of the testimony. In a civil suit, that is always the rule, the preponderance of the evidence the greater weight of the testimony; and if a party who assumes the burden of proof simply leaves the matter in doubt, so that you can’t tell on which side the scales go, the scales being even, his case fails; he does not prevail on the civil side of the court until his side of the scale is heavier. When the scales are even, then the attempt to prove has failed, because he who attempts to prove on the civil side of the court must prove by the greater weight of the testimony. I cannot help you much, gentlemen, in considering the facts in this case; they are very few. You are to ask yourselves: Was this foreclosure suit, which was instituted in 1892, made under an agreement made in 1887, and was that agreement that there was to be attorney’s fees paid by Fitzpatrick? Was there such an agreement? If so, you may ask, was anything said by Fitzpatrick in 1892 about that agreement made in 1887? Did he remind Jones, or Jones & Williams, of that agreement of 1887? If he did not, was that- because there was no such agreement, or was it simply because he forgot? Or you may ask: Is it possible that he may have imagined or believed there was such an agreement, while there was none? If there was no such agreement, did Fitzpatrick bring the mortgage to Jones & Williams to be foreclosed, and did he say nothing to them about a fee? Did he ask nothing about what the fee would be for the foreclosure; and if he did not, does that intimate to you that he was acting under some former agreement, or what he believed was an agreement; or did he put, the mortgage in the hands of those lawyers when he foreclosed, without saying anything about what they would charge? I can see how it would be somewhat difficult for you to come to a conclusion. You have to look at the case from all possible points of view, after passing upon the credibility of witnesses, and your test will be not only as to credibility, but as to common sense and observation in the ordinary, commonplace affairs of life. If you come to the conclusion that in 1887 there was no such agreement made (there was no allegation and no testimony, that I remember, that there was an agreement made in 1892), if you come to the conclusion that Mr. Fitzpatrick and Mr. Jones didn’t make the agreement which Mr. Fitzpatrick says that he believes was made, then you will consider the testimony as to the value of the services; and on that point you are to consider the testimony of the witnesses who were sworn before you, as to what would reasonably be the value of the services rendered in the foreclosure. I charge you that you cannot give more than $150; that is the amount asked for. I believe you ask for interest, Mr. Allison? Mr. Allison: I think we are not entitled to interest. I will state to you, if yon come to the conclusion to give Jones & Williams a verdict, you cannot allow interest at all. This is not a liquidated demand; it is something still to be fixed. You cannot, therefore, give more than $150. You remember some testimony that $175 would have been a reasonable fee. The plaintiffs have asked for no more than $150; they cannot get more than $150, and you may give that or any sum which you think, under the testimony, would have been a reasonable fee for the services. I have been requested by counsel for plaintiffs to charge you the following propositions of law: First. That this is a suit by Jones & Williams, as plaintiffs, against John H. Fitzpatrick, as guardian, and thát the defendant, who relies upon an express agreement as to the amount of counsel fees, must show, by the preponderance of the evidence, that there was such an agreement with the plaintiffs, Jones & Williams. I so charge you — that is the law. I am also requested to charge you that if you find that there was an agreement between Ira B. Jones and John H. Fitzpatrick in 1887 as to the price to be charged for the foreclosure of the Massey mortgage, that such contract could not bind the firm of Jones & Williams in 1892, unless you find that J. H. Fitzpatrick called the attention of Mr. Williams to the contract he had had with Jones in 1887, and that Mr. Williams aequiesed in the contract made with Jones in 1887. I cannot charge you that. I think I have charged you all the law applicable to this case, which in general is just this: Mr. Fitzpatrick is entitled to a verdict in this case, if he has satisfied you by the preponderance of the evidence that a contract was made between him and Mr. Jones in 1887 as to all dealings in connection with his ward. If he has satisfied you by the preponderance of the evidence that such a contract was made, he is entitled to a verdict. If, on the contrary, he, assuming the burden of proof, has not satisfied you by the greater weight of the testimony that such a contract was made, then he is not entitled to a verdict, and you will be bound to consider then the testimony as to the services of the plaintiffs, Jones & Williams, because there is no denial that they did the work, and if they did the work in the ordinary course of business as lawyers, under no such contract as Mr. Fitzpatrick claims, then they are entitled to pay for their services, and you will judge from the testimony what the services were worth. You understand, there can be no contract unless the minds of the parties meet. One man may think there is a contract and the other never think so, never agree. If such is the case, there is no contract. The jury rendered a verdict for plaintiffs for $25. Plai u-tiffs moved for new trial, and the Circuit Judge made the following remarks in regard to it: Well, gentlemen, the grounds of the motion for a new trial are these — one, that the verdict was not responsive to the evidence as to the value; the other, that the verdict was against the charge and the law, and the third suggests that two jurors are in some way related. But, as that is not insisted on, there is no material before the Court, no evidence as to relationship — I don’t suppose you insist on that, .sir? Mr. Allison: “We can get up affidavits on that point.” The Court: The question was put to the jurors, if any of them were related to the parties, and none of them answered “yes.” No doubt the question ought to have been asked then if they were related to the defendant’s cestui que trust or ward; that question was not put, and it is too late now to put that question. It is a matter of inadvertance, and I don’t think I could take notice now that two of the jury might have been related to the ward. I shall, therefore, devote myself entirely to the other two grounds. I am very well aware that a motion of this nature, if refused, leaves no other means of redress to the party making it; because only an appeal can be taken to the Supreme Court on errors of law, and not as to the weight of evidence, the facts of the case, and I will consider very carefully the motion in that regard; and I do regard it to be the duty of a judge to set the verdict aside whenever he is, in conscience, satisfied that the verdict is not responsive to the testimony. But, is it manifestly against the weight of the testimony, or has injustice been done by the verdict in view of the testimony? I am also aware, on the other hand, that the jury are the supreme judges of the facts of the case. In this case the jury found a verdict of $25 for the plaintiffs, and the motion is made upon the ground that that was inadequate compensation, and not in accord with the testimony as offered upon the stand; that the jury had come to the conclusion that there was a special agreement between Mr. Fitzpatrick and Mr. Jones. A jury consists of twelve men; and when they went into that room it is perfectly possible that a minority of them, judging by their verdict, may have believed that there was a special agreement, and that Mr. Jones was entitled to nothing more than tax costs; but that minority may have surrendered their view to the majority, who must have taken the view that there was no .such an agreement; that that minority may have influenced the majority of the jurors to lessen the amount — there is no law or rule to deny the jury that right; they are not only judges of the facts, but they are their own judges and counsellors as to how they arrive at their verdict; and even if the jury arrive at a verdict by compromise, unless there is glaring inconsistency between the evidence and the verdict, it cannot be disturbed on that ground. It is true, from my recollection of the evidence, that the only evidence of the value of the services limits the value to a minimum of $150, that $150 was a reasonable fee; at the same time, that testimony was the testimony of experts, giving their opinion as to the value of services, and not the testimony of witnesses as to the fact. Now, the jury is entitled, if it pleases, to disregard the testimony of experts; it is not bound by the opinions given on the stand only — they can assert their own opinions against the opinion of a lawyer or any other expert; the testimony of an expert is only useful when they desire to use it; they can disregard it by the rule of evidence; they are not compelled to be guided by it; if they need the use of expert testimony, they can use it. If they are satisfied with it, they can take it, and the testimony as to services being a matter of opinion, the jury may consider it or may not; the)' have a perfect right to consider the value of services according to their own estimates of the services; and, in addition to that, the testimony as to the money value is not the only evidence — they have the evidence as to what the work was, the amount of litigation. An intelligent jury, the foreman a very intelligent man, no doubt they, some of them, had had experience in these matters, and it. may have run through their minds that there was a certain amount of work to be done. True, the case was in court as to one hundred and some odd dollars, there was some litigation, and although the lawyers and judges may have said the services were not worth less than $150, the jury may have thought $25 was sufficient pay, and yet not come to that conclusion from the evidence; and they had a perfect right to reject the testimony of the experts — it is their prerogative. I am frank to say, if the testimony had been taken before me to fix the fee as referee or judge, I would have considered myself bound by the testimony of counsel; would have thought $150 a reasonable fee. But there was another question involved— there was the question, “Was there an agreement or not?” and, under that view, it is possible that those who believed that there was such an agreement may have arrived at the value of services by compromise: It is well, of course, that litigation should cease and— Mr. Allison: Your Honor, will you permit me to say a word? We take this ground, and took it before in this motion for a new trial — we take this line: that the contract that Capt. Fitzpatrick says was agreed to in 1887, was not binding on the firm of Jones & Williams, if made at all, and couldn’t bind the firm of Jones & Williams, couldn’t bind T. Y. Williams, unless brought to his attention, and he agreed to it. The Court: Mr. Allison, you framed a request to charge .on that line, which I declined to charge, for this reason: Not only that Mr. Fitzpatrick brought the mortgage to Jones & Williams to be foreclosed by Jones & Williams, but there is evidence that he knew that he was bringing it to them as a partnership, and that he was not simply bringing it to Mr. Jones, as he had done in 1887. Mr. Allison: The record showed that it was Jones & Williams, and I bring this up for 5mu to pass on that legal question at this point. The Court: Your request was: “If you find that there was an agreement between Ira B. Jones and John H. Fitzpatrick in 1887 as to the price to be charged for the foreclosure of the Massey mortgage, that such contract could not bind the firm of Jones & Williams in 1892, unless you find that J. H. Fitzpatrick called the attention of Mr. Williams to the contract he had had with Jones in 1887, and that Mr. Williams acquiesced in the contract made with Jones in 1887.” You see in that there was a charge on the facts, “called the attention of Mr. Williams to the contract which he had had in 1887.” You see, it takes for granted there was a contract.- But still, even if you had said here, “to the contract he alleged to have had,” I couldn’t have charged this without adding, “and unless, also, Mr. Williams brought to the attention of Mr. Fitzpatrick that he was a partner in Jones & Williams.” Mr. Allison; Our purpose is to get you to pass upon that law as applicable to the facts of this case. .The Court: I am very much impressed with the argument for a new trial, and I can understand how both sides are dissatisfied with this verdict, but I think the verdict must stand. I don’t see sufficient grounds to disturb it. The jury was an intelligent jury, and it was very evident that they had great difficulty in making up their minds between the two sides. They seemed to have given the preponderance to Mr. Jones’ side, that there was no contract, and yet there must have been some who thought the other way, and they agreed upon this exceedingly small amount for such services. But they were the supreme judges for value, and while I myself would certainly have allowed a. fee much larger than $25, yet I cannot say that I feel justified in disturbing the verdict; so I refuse the motion. No proof, by affidavit or otherwise, was made that any juror was related to defendant’s ward; nor was any statement made as to what relationship, if any, existed between any juror and defendant’s ward; nor was any statement made or proof given that the knowledge of any such alleged relationship was acquired after the empanelling of the jury. The sole basis for the motion for new trial, on the ground of alleged relationship of jurors, was the verbal statement by counsel that they were informed that two jurors were related to defendant’s ward; but counsel did not undertake to vouch for the fact, nor to state the degree of relationship. And it was denied by defendant that any juror was related to defendant’s ward. The following are the exceptions or grounds of appeal from the Circuit Court to the Supreme Court: I. Because the Circuit Judge erred in refusing to charge the jury, when requested by plaintiffs’ attorneys, as follows: “If you find that there was an agreement between Ira B. Jones and John H. Fitzpatrick in 1887, as to the price to be charged for the foreclosure of the Massey mortgage, that such contract could not bind the firm of Jones & Williams, unless you find that J. H. Fitzpatrick called the attention of Mr. Williams to the contract he had had with Jones in 1887, and that Mr. Williams acquiesced in the contract made with -Jones in 1887.” II. Because he erred in charging the jury as follows: “Mr. Fitzpatrick is entitled to a verdict in the case, if he has satisfied j^ou by the preponderance of the evidence that a contract was- made between him and Mr. Jones in 1887 as to all dealings in connection with his ward;” whereas, he should have charged, if there was an agreement between Ira B. Jones and John ’H. Fitzpatrick in 1887, before the partnership of Jones & Williams, that Jones & Williams would not be bound • thereby, unless the firm, or one of them after the forming of the partnership, assented to such agreement. III. Because he erred in charging the jury as follows: “If you come to the conclusion that Mr. Fitzpatrick and Mr. Jones didn’t make the agreement which Mr. Fitzpatrick says and believes was made, then you will consider the testimony as to the value of the services.” This was erroneous, in making the consideration by the jury of the evidence as to the value of services dependent on their first finding that Fitzpatrick and Jones (not Jones & Williams) did not make the alleged agreement; it was-furthermore erroneous, in that it was a comment on the testimony and sincerity of Fitzpatrick, as it was -an expression of the Court that Fitzpatrick was sincere, and believed what he had testified to. IV. Because the Circuit Judge erred in commenting on the facts to the jury as follows: “I can not help you much, gentlemen, in considering the facts in this case. They are very few. You are to ask yourselves: Was this foreclosure suit, which was instituted in .1892, was it made under agreement made in 1887, and that agreement was that there was to be no attorney’s fees paid by Fitzpatrick? Was there such an agreement? If so, you may ask,- was anything said by Fitzpatrick in 1892 about that agreement in 1887? Did he remind Jones, or Jones & Williams, of that agreement in 1892? If he did not, was that because there was no such agreement, or was i-t simply because he forgot? Or you may ask, is it possible that he may have inquired or believed there was such an agreement, while there was none? If there was no such agreement, did Fitzpatrick bring the mortgage to Jones & Williams to be foreclosed, and did he say nothing to them about the fee? Did he ask nothing about what the fee would be for the foreclosure? and if he did not, does that intimate to you that he was acting-under some former agreement, or what he believed was an agreement? or did he put the mortgage in the hands of these lawyers when he foreclosed, without saying anything about what they would charge? I can see how it would be somewhat difficult for you to come tó a conclusion.” V. If the jury reached'the conclusion that the testimony was not sufficient to establish the alleged agreement between Mr. Fitzpatrick and Mr. Jones in- .1887, which they were bound to do, to give the plaintiffs the-small verdict of $25, then, it is submitted, the Circuit Judge erred in law in refusing plaintiffs a new trial, for the uncontradicted testimony showed that the services rendered by plaintiffs were worth not less than $150. VI. Because the presiding Judge erred in law in allowing the verdict to stand and refusing, a new trial, when there was not a particle of testimony to reduce it below $150— nothing but caprice. VII. Because there was no evidence to sustain the verdict reducing the value of the services of Jones & Williams to $25, and the presiding Judge erred as a matter of law in refusing a new trial. VIII. Because the presiding Judge erred as a matter of law in refusing a new trial, upon the ground merely “that a minority of the jury, judging by their verdict, may have believed that there was a special agreement, and that Mr. Jones was entitled to nothing more than taxed costs; that the minority may have surrendered their view that there was no such agreement; that the minority may have influenced the majority of the jurors to lessen the amount, and that there was no law or rule to deny the jury that right.” IX. Because the presiding Judge having stated, “that if the testimony had been taken before him (me) as referee or judge, he (I) would have considered himself (myself) bound by the testimony of counsel, would have thought $150 a reasonable fee,” erred, notwithstanding, in refusing a new trial, on the ground that there was another question involved, viz: “Was there an agreement or not?” and that under that view it is possible that those who believed that there was such agreement, may have arrived at the value of the services by compromise.” See reference in order of Court refusing new trial for his reasons. X. Because he erred in refusing a new trial on the ground that the jury were the supreme judges of the value of the services of plaintiffs. XI. Because the presiding Judge erred in permitting the verdict of the jury to stand, on the ground that the jury had the right to disregard the testimony of experts as to the value of plaintiff’s services, and had the right to consider the value of the services according to their own estimate thereof. XII. Because the presiding Judge erred in holding, that, on the motion for a new trial, it was too late to consider the question whether two of the jurors were related to the real defendant, Mary A. Kibler, the ward of John H. Fitzpatrick, guardian; that the failure of the Court to ask if any juror was related to the ward was a mere inadvertence, and that it was then too late for him to take notice thereof. cite: Partnership: 17 A. & E. Ency., 987; Rivingston v. Cox, 6 Pa. St., 360; Cogdan, Hazzard & Co. v. Morgan, 13 S. C., 194; Briggs & Co. v. Hubert & Co., 14 S. C., 620; Anderson & Co. v. Holmes & Durham, 14 S. C., 166. New Trial: Flennikan v. Scruggs, 15 S. C., 92; -Brastfied v. Brown, 4 Rich. Raw, 298; City Council v. Talk, 3 Rich., 299; Wightman v. Butler, 2 Speer, 359; Dogan v. Ashley, 1 Strob., 435; Verdier v. Trowell, 6 Rich., 169; Grinke v. Houseman, 1 McM., 132; Wood v. R. R., 19 S. C., 579; State v. David, 14 S. C., 430; Steel v. R. R., 11 S. C., 591. cites:' Requests: Taylor v. Dominick, 36 S. C., 308; Mars v. Wright, 22 S. C., 585; Gunter v. Man. Co., 15 S. C., 444'. Partnership: 17 A. & E. Ency., 1116; Rucas v. Coulter, 104 Ind., 81; Kerney v. Snodgrass, 12 Ore., 311; Shoemaker v. Bernard, 2 Rea. (Tenn.), 358; Russell v. Bardes, 14 N. Y. S., 473. Charge: Fitzsimmons v. Guanahani Co.,. 16, S. C., 192; Richards v. Munro, 30 S. C., 284, 290; see, also, Simmons v. Bank, 41 S. C., 178; Evans v. Chamberlain, 40 S. C., 104; Hiott v. Pierson, 35 S. C., 611; Bowen v; R. R. Co., 34 S. C., 218, 236; Fogette v. Gaffney, 33 S. C., 303, 306, 311; Fowler v. Allen, 32 S. C., 229, 235; Rynn v. Thompson, 17 S-. C., 137; Benedict v. Rose, 16 S. C., 629; Archer v. Anderson, 20 S. C., 495; Whaley v. Bartlett, 42 S. C., 455. New Trial: Al-tee v. R. R., 21 S. C., 851; Warren v. Rogan, 12 S. C., 45; Finch v. Finch, 21 S. C., 342; Sheppard v. Rake, 2 Bail., 576; Stickley v. Ins. Co., 37 S. C., 56, 71; Webber v. Ahrens, 36 S. C., 587; Hyrne v. Erwin, 23 S. C., 231; Steel v. R. R., 11 S. C., 589; Brickman v. R. R., 8 S. C., 173; Blakely v. Fraser, 20 S. C., 144. Experts: Chandler v. Barrett, 99 Ann. Die., 707; 1 Green. Ev. (14 ed.), sec. 10, note a, sec. 440, notes 2 and b; Head v. Hargrove, 105 U. S., 45; 7 Am. & Eng. Enc. of Raw, p. 516; Congress v. Edgar, 99 U. S., 645, 659; Schweinger v. Raymond, 105 N. Y., 648; Von Valkenburg v. Von Valkenburg, 90 Ind., 443; Stone v. N. W. R. R., 33 N. W. Rep. (Mich.), 24; Atchison v. Thul, 32 Kans., 255; McGregor v. Armill, 2 Iowa, 30; Tatum v. Mohr, 21 Ark., 349; Chandler, v. Barrett, 21 Ra. Ann., 58. Relationship ofjtirors: Todd v. Gray, 16 S. C., 635; Pearson v. Wightman, 1 Mill, 336; Josey v. R. R. Co., 12 Rich., 133; Bridger v.’ R. R. Co., 27 S. C., 456; McCarty v. McCarty, 4 Rich., 594; Pulaski v. Ward, 2 Rich., 122.