Willard v. Williams
Willard v. Williams
Opinion of the Court
delivered the opinion of the court.
This suit was brought against the appellant, Willard, to recover the value of services performed partly by the appellee Williams, and partly by H. J. Hersey as attorney for Willard in sundry and divers suits. The whole case is in a nut shell. Hersey and Willard had a good many dealings which included the organization of the Denver, Lakewood & Golden Railway Company, and the Bennett Electric Placer Mining Company. In the furtherance of their common interests in the organization of those two corporations there seems to have been an arrangement between them by which Hersey was to receive a considerable stock interest in each company for his services, and later he was employed as the attorney for the railroad company, and the secretary of the placer company, on a compensation which is not involved and need not be stated. Willard became the holder of a large number of bonds of the railroad company on which the company defaulted in the payment of interest. Willard as the holder of the unpaid interest coupons, employed Hersey to bring suit to enforce the collection. Under this employment Hersey brought several suits before a justice, in one of them collected some money, and in another he seized money on garnishment, but the'railroad company brought suit to enjoin further proceedings in that matter, procured an in
With this premise the disposition of the appeal is simple. There are quite a number of errors urged respecting the rulings of the court in the admission and rejection of testimony but we are unable to discover any which form a substantial basis for a reversal. The appellant attempted to put a question to Hersey respecting the number of cases involving injunctive relief which he had had in the court of appeals, but the question was objected to and he was not permitted to put it to the witness. We discover no error in this ruling, nor can we see that the rule of law invoked against it, is at all applicable, or decisive. We are not disposed to disagree Avith counsel respecting the right to show the extent and character of the services and experience of an attorney and his status in the profession when he sues for fees and that these matters may to a greater or less extent be considered in. determinating what he ought to charge for a given service.
All the other errors assigned are based on the instructions which the court gave and which he refused to give. It was not error for the court to refuse to give the instructions which the defendant asked because as to the first, the modification was absolutely indispensable to a correct statement of the law, and in respect to the second, it was substantially given in the charge of the court.
We should have very considerable difficulty to support the court’s instruction in its fifth paragraph if the defendant had preserved the question in such way that it was properly presented and we were bound to rule on it. The charge was by consent of parties oral, and while it seems to have been paragraphed and numbered the defendant made no objection to the charge except that upon its conclusion he excepted to
The language used makes it tolerably plain because in both those cases the court declines to consider exceptions in the absence of specific objections pointing out the part complained of whereby an opportunity was given to the trial court to correct its instructions. Obviously if the intent and scope of the requirement is to afford the trial court an opportunity to correct its charge, its attention must be called to that part of it to which the appellant objected at the time of the trial. We are unable to discover anything in the record to show that the appellant did eoniplain of any part or portion of the charge at the trial. He referred to no specific portion of it, made no objection to any part of it, but simply so far as we can see, said, “ I except to the charge.” Under this rule that is not enough to save the question. This is clearly right and just to litigants. Parties have no right to sit by and permit a court to instruct the jury, and say nothing respecting the terms and scope of the charge, and by the simple utterance “I except,” preserve any question for the purpose of an ultimate review, which on mature reflection and careful examination in the light of authorities they may discover to be erroneous.
The charge was not entirely accurate in the light of those decisons, and if the jury had been expressly told that they could only consider the evidence of the attorneys, and not the other proof in the case, and that they could not use their own knowledge, judgment, and experience in such matters, it would have been clearly .bad law. The instruction is on the border line because the court did tell them that they were bound to take the testimony of the witnesses on the subject, and were not at liberty to find a verdict on what they might “ think of it ” outside of the evidence. It so happens that there was no evidence offered by either side as to the extent and character of the services or value, except what was given by the two attorneys, Hersey, the assignor, and Mr. Gove. Practically then, the jury were only told that they must consider what .evidence had been offered. Thus far the instruction perhaps may be justified. Then when the court told the jury they must proceed on the evidence and not on what they thought, it possibly might be supported on the theory that the instruction does not in terms exclude the jury from a consideration of the case in the light of their
The appellant makes some complaint respecting the form of other portions of the charge, principally on the theory that it stated the case too strongly for the plaintiff and treated the defense too lightly, but we are unable to discover anything either in its form or substance which we can call error and we think it incumbent on the defendant who requires his case to be more closely and carefully stated, to frame a request therefor and present it to the court, or if the charge be oral, to call the court’s attention to the matters of which he complains and seek their correction at the time. We do not believe he can sit idly by and then complain unless he can put Ms finger upon a matter which is clearly and undoubtedly erroneous.
We are unable to discover any error M the case which will warrant the reversal of the judgment and it will therefore be affirmed.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.