The opinion of the court was delivered by
Redfield, J.— In this case there are two bills of exceptions still remaining upon the record. It would have comported better with my own notions of propriety, to have considered the last bill of exceptions, signed by the whole court, and professing to present a statement of the whole case, as superseding the former bill, in those particulars where the two bills were contradictory. But my brethren incline to treat both bills as forming part of the record. The plaintiff’s claim is for professional services, as an attorney. The only question made in the case, was, whether the services, which, it was admitted, the plaintiff performed for defendants’ benefit, were performed gratuitously, or under an engagement by defendants’ agent or attorney. This was principally a matter of fact, to be determined by the jury upon a fair consideration of all the circumstances of the case. Upon that subject perhaps nothing more could be said than what is already reported in this case. 10 Vt. R. 68. If plaintiff performed the services without any expectation of receiving pay, he cannot recover. If he was expressly retained by defendants’ agent, or by the attorney with the knowledge and consent of the agent, he is entitled to recover a reasonable compensation. If there was no express retainer, still, if the plaintiff, at the time of performing the services, expected to receive pay and was fairly justified in such expectation, either from tiie manner in which he was called into the case, or in which he was treated by defendants’ agent during the time of performing the services, he should recover. In the first bill of exceptions it is said by the court to the jury, that they would not be justified in inferring an employment from these circumstances, which is manifest error. In the last bill, the jury are as explicitly told that they may infer an employment from these circumstances, which is wholly repugnant to the doctrine laid down in the first bill. If both bills stand, we can only suppose that the jury are charged both ways in regard to the same point, i. e. that the same precise proposition, which is decisive] of the case, is law and that it is not law. This is equivalent to the court refusing to charge upon a material point, when requested so to do, *65which is always’regarded as erroneous. Because, then, we do not know what charge was given, and as the plaintiff was entitled to a charge upon the point, the judgment of the county court is reversed and the case remanded for new a trial.