Nutt v. Merrill

Tenney, J.

The defendant’s counsel, in their argument, insist that the fourth, fifth, sixth and eighth instructions, as requested, should have been given to the jury. The first two, and the last of these instructions, were not given in the language employed by the counsel, but the general instructions given, embraced substantially those requested in all respects, and were quite as favorable to the defendant, as he was entitled to demand; and he was not aggrieved in this particular.

*243The sixth instruction requested was, that before the plaintiff could have a right to recover in this suit, lie must prove, by satisfactory evidence, that he had paid the sum of $156, the balance of the execution, Wheeler v. Nichols, over the net proceeds of the attached property; and also the sum of $90, for counsel fees, said to be incurred in the defence -of that suit.”

Tt is understood from the case, that the plaintiff defended the suit against the sheriff, it being for the alleged misdoings of his deputy; and the plaintiff also incurred an expense, in so doing, of the sum of $90, as counsel fees; and the excess of the execution, in favor of Wheeler & als. v. Nichols, recovered in the same suit, over and above the avails of the goods sold, was the sum of $156. No evidence was introduced, or suggestion made at the argument, that the defendant had entered into any agreement with the sheriff, for his indemnity, or the counsel, who defended the action against him, to pay for his services. And no privity existed in any manner, between the sheriff or counsel, and the defendant, so that the latter would bo liable to either. And as the plaintiff, the deputy of the sheriff, and his bondsmen, were the only persons on whom Nichols could call for payment of the balance of the execution, and that by the contract in the bond of the deputy, and the plaintiff was alone responsible for the counsel fees, under an express or implied contract, it must have been to the defendant a matter of indifference, whether these contracts, in these respects, had been discharged or not. The breach of them could cause, in no event, any injury to Mm; and the plaintiff would be entitled to recover, notwithstanding the claims of Nichols and Ms counsel were still outstanding. Level v. Hawes, Oro. Eliz. 619, 652; Nippon v. Norton, Ibid. 849; Smith v. Berry, 37 Maine, 298.

It is insisted, on the part of the defendant, that the charge of the plaintiff for the service of Ms writ, v. Bedloe of al., cannot be recovered, because the declaration does not include it,and because the plaintiff’s counsel, in his opening to *244the jury, did not expressly claim it. The declaration in the writ, among other things, contains a claim for services performed for the defendant, at his request; and this will embrace the service of the writ. The case finds, that before the argument of the defendant’s counsel to the jury, he was informed) on the part of the plaintiff, that this claim would be insisted on. And it was within the discretionary power of the Court, to allow this to be presented, notwithstanding it had before been announced, that the case had closed.

The objection, that the declaration in the writ is insufficient to cover the claim for the defendant’s proportion of the unpaid balance of the execution against Nichols, because the same was neither costs nor expenses of suit, Wheeler v, Nichols,” has no foundation. If not costs or expenses in the suit, it could be allowed under the head of “ money paid, laid out and expended for the said Merrill, at his request.”

The contract entered into by the defendant’s counsel with the plaintiff, on Sept. 11, 1847, was received in evidence, against the objection of the defendant. At the trial, a question of fact was presented, whether the instructions, which were given by the defendant to his attorneys, who after-wards executed this contract, within their legitimate scope, would authorize them to defend the suit against Nichols. Evidence was introduced upon this question, which being properly submitted to the jury, and without objection, it was not impropei', that the writing should be read in connexion therewith; and as the Judge instructed the jury, in his charge, that if Merrill’s instructions to his attorneys were, that they should not persevere in the attachment of Bodloe’s goods on his writ, and in the prosecution of the suit, unless there was a good prospect of success, and if, upon Sept. 11, 1847, the day of the date of the writing, they knew, or might have known, that the sales of the attached property would not, or probably would not, be sufficient to pay the judgments in the suits where the attachments preceded Merrill's, they were not authorized to bind him by that writing, this writing could not have been consid*245ered by the jury, as being before them for any purpose, not legally authorized.

It appears from the exceptions, that the motion to set aside the verdict, may be copied, and made a part of the case. No copy of the motion is found among the papers; neither is there a report of all the evidence of the case, certified by the Judge who presided at the trial, according to the provision of the statute of 1852, c. 246, § 8, and the motion cannot be considered. Exceptions overruled.

Judgment on the verdict.