Hinckley v. Krug

TEMPLE, C. This appeal was taken by the defendant from the judgment and from the order refusing a new trial. It is an action to recover $675 for services as attorney at law, alleged to have been rendered defendant “between the first day of June, 1889, and the first day of June, 1891, in prosecuting and defending suits, and for like services, at his request, in drawing, copying, and engrossing of divers conveyances, deeds, and other paper writings, and for divers journeys and other attendances,” etc. The defense consists of a general denial and of six counterclaims for damages alleged to have been caused by the negligence and incompetency of plaintiff as attorney, and of a demand for $125, money due from plaintiff to defendant. The ease was tried with the aid of a jury, which rendered a general verdict against defendant for $325. The defendant not only attempted to recoup damages resulting from alleged negligence and incompetency- of the plaintiff, but he claimed at the trial that such negligence and incompetency justified defendant in discharging plaintiff as his attorney, and that he was compelled to and did discharge him before the services were completed, and, further, that plaintiff had contracted to perform the services for a stipulated compensation for the entire services. Upon this point the court properly instructed the jury that under such circumstances, the contract being an entirety, plaintiff could not recover for his services. It is important to bear in mind, therefore, that the question of negligence is presented in two ways: First, on a claim to recover damages, and as a justification for the discharge of plaintiff as his attorney before the completion of the stipulated service. An action could not be maintained on account of the negligence or incompetency unless injury had resulted to the client, but the same negligence might -justify and necessitate the discharge of the attorney, to avoid damage.

The first alleged error consists in an order striking out the first claim for damages, on the ground that the averments show that defendant was not injured. I think this ruling correct. It was averred that, in an action to foreclose a mortgage, plaintiff, through negligence, failed to file a notice of the pendency of the action. It appeared that no one acquired any interest in the mortgaged premises during the pendency of the suit; that defendant purchased the premises at the mortgage sale, paying the full amount of his debt and costs. It was not [211]alleged that he was ignorant of the defect, if it was a defect. Not having been injured, he could not maintain an action for the alleged negligence. There was evidence at the time tending to show that defendant had employed plaintiff as his attorney to prosecute certain actions to final judgment for a fixed and stipulated fee in each case, and that plaintiff had been discharged as such attorney, before the actions had been brought to judgment, for alleged negligence and incompetency, consisting partly in his failure to file such notices in two actions to foreclose mortgages for defendant. In regard to the matter the testimony of plaintiff and defendant was conflicting. Plaintiff testified: “Krug did not want to spend the money for filing them. I explained to him that, if no notice of action was filed, people who bought interests in the property could come in at any time and redeem. He said he did not want any such paper filed; the more people came in and redeemed, the better. I told him the expense in the Eddy suit would probably be four or five dollars for the lis pendens. I explained to him that he would have to have the title searched again before he took the decree, to see that nothing appeared of record, and if he decided not to file his lis pendens he would put me to that much extra trouble. ’ ’ The defendant testified positively that no such conversation occurred, and that nothing was said upon the subject; that he did not' know that such a notice was required. Defendant objected to the testimony of plaintiff in regard to the conversation, and assigns the ruling admitting the testimony as error. The evidence was mainly directed to the question as to whether defendant was justified in discharging plaintiff as his attorney. "While it may be doubted whether plaintiff sufficiently excused himself, I think the evidence was competent. Defendant complains, also, of certain instructions in regard to this matter, but the statement fails to show that any exception was reserved to the instructions at the trial.