#### Hower *v.*Taggart.

In an action for counsel fees and expenses, by an attorney-at-law, where it appears that the services were rendered and evidence is given as to their value, it is a question for the jury, and a verdict for the plaintiff will not bé reversed for a general submission to the jury, in the absence of a request for more specific instructions to the jury, although the plaintiff testified that he agreed as to part of his services that he would not charge for his time unless he won, which he failed to do.

Feb. 21, 1889.

Error, No. 424, Jan. T., 1888, to C. P. Schuylkill Co., to review a judgment on a verdict for plaintiff in an action of assumpsit, wherein A. D. Flower was plaintiff, and Rebecca Taggart was defendant, at Jan. T., 1886, No. 91. Sterrett and Mitchell, JJ., absent.

It does not appear when suit was brought. On Jan. 4, 1886, the narr and copy of the claim were filed, but they are not given. The defendant pleaded non assumpsit and payment with leave.

The plaintiff, on cross-examination, testified, inter alia, as follows : “ I made a provision, to my recollection, in writing, like

this, that, if we did not win [in the supreme court], I would not charge anything for my time.”

The further facts appear by the charge of the court below, which was as follows, by Green, J.:

“ There are a number of things that are not disputed in this case. In the first place, as to the fact the plaintiff was employed by Mrs. Taggart for the purpose of conducting her legal proceedings in Lycoming county, and also of her sending for him to come to Schuylkill Co. for the purpose of engaging himself in certain work that.was to be done in Schuylkill Co. There is no dispute as to that fact at all. The plaintiff himself testifies with a great deal of particularity as to the notice and the amount of services which he rendered to this defendant. He resides at Muncy, in Lycoming county, and the county seat is at Williamsport, some distance from Muncy, and naturally the transaction of this defendant’s legal business in Lycoming county required him, to go to the county seat for the purpose of transacting that business. He has given here in his bill the number of times that he went to the county seat upon business for this defendant, the inquisition that he attended, the case that was argued in Lycoming county, and also the fact of additional counsel having been employed; the fact that the case at Lycoming county went adverse to this defendant, and that the case was then removed to the supreme court, where it was argued by himself and his associate *583counsel, Charles Hower, and that it was not until six or nine months afterwards that the supreme court gave a decision of the case, which was October, 1882. All these are facts in the case that are not disputed, the fact of his having rendered all these services, and that he was employed as counsel by Mrs. Taggart. The correspondence between these parties show all these facts. Therefore, having rendered these services, naturally he would be entitled to compensation. A question has arisen here as to whether his compensation, which he charges, is such a compensation as is reasonably fair, considering the nature of the services, considering the nature of the skill which was required for the purpose of performing the services, considering the amount of work which was required for the purpose of attending to her business. There is no allegation here that her business was not properly attended to. You have already a statement here as to the manner in which this business was conducted, and also as to the nature of the business. It appeared to arise from a question as to the rights of Mrs. Taggart under the will of her husband, and also as to her rights under the common law. We have not got the will in evidence, but it is very evident that the question arises as to her dower in a certain mill property, located at Hughesville, in Lycoming county. The property was apparently reserved to herself, or certain rights had been reserved to her under the will of James Taggart, her husband. She was not bound to accept under the will of her husband, but the law gave her the right to her dower which existed if no will had been made, and she would have the right to choose whether she would accept under the will, or claim her right of dower under what is called the common law. Under the terms of the will, this property had been sold by the executor, Mr. Graeff, for the sum of eight thousand dollars. She claimed this property was worth a great deal more than eight thous- and dollars, and undertook to disclaim any rights under the will, but that she would take her claim in this property, through her rights at common law. That was in her power and for that reason these proceedings were instituted by Mr. Hower, for the purpose of enabling this woman to claim her right at common law in this property, i. e., her dower, exclusive of any right that might have been given her by the will. [From what has been stated, and from the will, &c., it áppears pretty plain, she would have been entitled to this right, if she had not, according to the evidence, spoiled her own case. She had attended the sale of the property by the executor, and either urged bidding upon the sale or induced others to bid, and had seen the down-money paid and apparently acquiesced in the sale of this property by the executors under the will, then she was estopped from making her claim under the provisions of the common law. She was estopped from claiming any other right under the common law, and was confined to her right as defined to her by the will. That seemed to be the extent of the litigation, but those facts could not be naturally ascertained until the testimony was taken for the *584purpose of determining those facts, and this then gave rise to a dispute as to whether the facts showed that to be the case, and for that reason this proceeding was started in order to give her her right under the common law.] [1] There is no dispute as to the facts of the proceedings having been instituted by Mr. Hower, that all these services were performed, and he has given you day and date when these services were performed, and there is practically no dispute in the testimony as to the services and the nature of the services that were performed by Mr. Hower. The next question would be as to what compensation should be given him for these services; and compensation for services of this kind must be reasonable, considering the nature of the services and the ability that was required; also considering the usual charges made by men in the same profession for services of this kind. You have, in connection with that, the testimony of Mr. Flower himself, and also the testimony of other attorneys as to the amount of his charges for these services, the testimony of Mr. Schalck, Mr. Nash and Mr. Graeff, and there is no testimony to contradict it at all. They all testified to the fact that these charges for services made by Mr. Hower when he was employed in transacting this business for Mrs. Taggart were fair and reasonable. Mr. Schalck speaks of them as being a minimum charge for services which required Mr. Hower to absent himself from his office and place of business for the purpose of going to other places in order to transact Mrs. Taggart’s business. There • is no testimony against this at all. It is uncontradicted, and the extent of the services is also uncontradicted, and the plaintiff would be entitled to a verdict, unless there are other elements in the case to show that Mr. Hower is-not entitled to pay for these services. Then, under your oath, being bound by the evidence in the case, it would become your duty to find a verdict in favor of the plaintiff for the amount of his claim, giving to the defendant the credit for what she has already paid on account of it. In the same way, you have no dispute here as to the amount of money which was paid out by Mr. Hower on account of these different items of expense. You have in testimony the fact that Mrs. Taggart, in her letters, complained that she had no money to pay these expenses at all, and that Mr. Hower did pay them. You have the checks here and also have the testimony as to the amount of money that he paid. According to that testimony his claims altogether would amount to $608.11. That includes everything. Then he claims that he has paid out of his own pocket the sum of $189.11, expenses of paper-book, traveling expenses, monies that he paid to his uncle, Charles Hower, who was associated with him as counsel in the case. All these expenses he claims he paid out of his own pocket. Fie has produced checks showing actual payment by check of $144 and some cents. The balance was paid in money by himself, and there is no dispute in the evidence as to the payment of these different items. Then, taking his claim at $608.11, *585and from that deduct the money he actually expended out of his own pocket, $109,11, that would leave $419 for services rendered, and out of that $419 he claims that he is indebted to Charles Hower, associate counsel, in the sum of $100. Deducting that, it would leave practically the sum of $319, as the fees due to Hower on account of his services in the case. Those three items together, costs and expenses $189.11, $100 to Charles Hower, the plaintiff’s $319, would make the gross sum of $608.11. [I say, under the uncontradicted testimony in the case, the plaintiff would be entitled to a verdict against the defendant, less the amount which he has already been paid, unless you find that there was a contract between these parties which altered the relation between them so far as the fees that the plaintiff had a right to charge are concerned. If you find, under the evidence in this case, that there was a contract between these parties as to the amount of fees that the plaintiff should charge, then, of course, both parties would be bound by the terms and provisions of that contract. Is there any evidence here of any contract between these parties as to the fees and services ? You have the letters of Mrs. Taggart and Mr. Hower. Their correspondence is very voluminous, but you have this fact to be taken into consideration: This correspondence commenced about 1880, and a portion of these letters bear upon the question as to his compensation. It is very evident that, so far as those letters are concerned that are prior to Dec. 6, there was no agreement between them as to compensation, and nothing practically had been done. Mr. Hower proposed certain terms by which he was to receive a certain amount down, and a certain amount as a contingent fee. The letters of Mrs. Taggart show that she would not agree to that. There were two propositions with regard to the payment of a contingent fee; a contingent fee of course was dependent upon the successful issue of the suit, of the litigation. But the correspondence between these parties does show that there was no agreement at that time, so far as the payment of any contingent fee was concerned. The expressions in the subsequent letters of Mrs. Taggart, that she had no money, but that she would pay him well if he succeeded, would not be sufficient to create a contract between these parties. He did not say, if he did not succeed he was to receive nothing at all. If there were no specific contract between them in regard to the fees, and if the services were rendered, Mrs. Taggart would be liable to Mr. Hower for what the services were reasonably worth; what these services were reasonably worth is shown by the testimony of the other witnesses in the case,] [2] Mr. Schalck, Mr. Nash and Mr. Graeff; also of the plaintiff himself; and all that testimony is uncontradicted. If you find that this letter of Dec. 6, 1880, written by Mrs. Taggart, upon the subject of the fees, bears on the question of a retaining-fee (but a retaining-fee had already been paid prior to this time, as I understand), there can be no inference that he was to receive merely a retaining-fee. The inference *586is that he was to receive the regular fee. If that were the case, then there was simply no *agreement;*that would have been exactly the same as if there had been no agreement between the parties, that is to say, Mr. Hower was to be paid the regular fees, that is, what the services were reasonably worth. Is there any other evidence in this case to show that this agreement between these parties was changed ? Recollect, it takes two to make an agreement of this kind. Is there any thing in these letters to show that both Mr. Hower and Mrs. Taggart ever changed that agreement between them. If there is nothing to show that fact, that letter, dated Dec. 6, 1880, would bind both parties, and, as I have said already, if that letter of Dec. 6 had not been written, and there had been no subsequent agreement with regard to it, it would not alter the status of the parties, because the plaintiff would then be still entitled to charge the regular fees for the services that were performed. [You also have testimony here with regard to the employment of Charles Hower. Mrs. Taggart, in her testimony, claims she did not employ Charles Hower, admits that she met him at Williamsport, was introduced to him, and that the nephew, the plaintiff in this case, had informed her that he was to be associated with him in the conducting of these proceedings. She did not dissent. She says she said nothing. In such a case as that, her silence would amount to consent that he should be employed as associate counsel with Mr. Hower in the conducting of the case. You have also some letters in which Mr. Charles Hower’s name is mentioned as being concerned in the case. If that were the fact, and the evidence here is he did concern himself in the case, that he helped to argue the case before the court at Williams-port, subsequently went to Philadelphia and argued it there, then that would be a service rendered in this case for which Mrs. Taggart may be held or could be held liable, because the service was rendered for her, and with her consent and with her knowledge.] [3]

“ The next question that might arise in the case is as to the taking of the case to the supreme court. It is alleged here that the plaintiff in this case urged the taking of this case to the supreme court, that he advised the taking of this case to the supreme court, and, if Mrs. Taggart had been left alone, that, of her own motion, she would not have taken it to the supreme court. I presume the jury very well know that lawyers are employed for the purpose of giving advice, and clients generally follow the advice as given them by their attorneys. The relations existing between a client and the attorney is a relation of mutual confidence and trust. The client goes to the attorney because he trusts him, goes to him for advice; and the fact that Mr. Hower in this case was acting as Mrs. Taggart’s attorney, did advise her to take the case to the supreme court, that he declared that the decision of the court below was wrong, or even urged her to take the case to the supreme court, all that should not weigh anything at all úpon a question as to whether he is entitled to compensation or not. The question is what services did *587he render and what was the contract under which he rendered the services. The mere fact of his urging the removal of the case to the supreme court, could not affect the question as to his compensation for the services that were rendered, because it is part of the business of the attorney to give the advice as to whether the case should be taken to the supreme court or not, providing that advice rests upon an honest belief that he is right in what he urges. There is nothing here to show that the attorney in this case did not thoroughly believe that he was right. He testified here upon the stand that he believed he was right at the time, and believes so still, even though the supreme court may have decided against him. That is a mere question as to the honesty of his advice. Having given his client honest advice, he would be entitled to compensation for the services he did in her behalf, unless you could find, under the evidence in the case, that there was an agreement between them that, for the services rendered in taking the case to the supreme court, he was to receive no compensation at all. Is there any evidence in the case here that, so far as compensation was to be paid for the taking of the case to the supreme court, it was to amount to nothing? [You have the allegation here of defendant that he said the cost of taking it to the supreme court would be from fifty to seventy-five dollars, and that this, according to his statement, was by reason of the costs that were necessarily incurred in taking out a writ of error, in the first place, and the cost of printing a paper-book, which he told her would cost some fifty dollars, that it would cost from one dollar to one dollar and twenty-five cents a page, which is the usual charge of the printer for getting up a paper-book; and then his declarations to her as to what those costs would be. But what his own compensation would be he could not tell, because he could not tell how long he would have to wait before the case would be argued.] [4]

“ It is a question of fact for the jury, under all the evidence in this case, as to whether there was any agreement between these parties with regard to taking the case to the supreme court. A mere representation as to what the costs and expenses would be as to the printing of the paper-book, and the other costs that might be in-incurred, would not amount to an agreement. You must find, under all the evidence of this case, that there was an agreement between these parties, and what amount of compensation which the plaintiff was to receive by reason of the taking of the case to the supreme court. If there was no agreement between them with regard to that, then the same rule would follow as we have already laid down to you; that is, that the plaintiff in this case would be entitled to receive reasonable compensation for his services.”

Verdict and judgment for plaintiff. Defendant then took this writ.

*The assignments of error*specified, 1-4, the portions of the charge within brackets, quoting them.

*588March 4, 1889.

*W. F*Shepherd, for plaintiff in error.

The court, in the portion of the charge quoted under the first assignment of error, commented on a matter which had nothing to do with the case, and which was not proved. The court cannot submit as facts averments not proved: Cauffman *v.*Long, 82 Pa. 72; Raby *v.*Cell, 85 Pa. 80; Morton *v.*Weaver, 99 Pa. 47 ; Egbert *v.*Payne, 99 Pa. 239.

The court omitted facts important to defendant, and grounded their instruction upon facts which make for the plaintiff. All facts should be reviewed impartially: Harrisburg Bank *v.*Forster, 8 Watts, 304; Goersen *v.*Com., 99 Pa. 388; Nieman *v.*Ward, 1 W. & S. 68; Relf *v.*Rapp, 3 W. & S. 21; Parker *v.*Donaldson, 6 W. & S. 132; Garrett *v.*Gonter, 42 Pa. 143; Heilbruner *v.*Wayte, 51 Pa. 259 ; Reese *v.*Reese, 90 Pa. 89.

There was no evidence of a contract in reference to taking the case to the supreme court. The evidence is directly to the contrary. It is error to submit a question of which there is no evidence: Whitehill *v.*Wilson, 3 P. & W. 405 ; Stouffer *v.*Latshaw, 2 Watts, 165 ; Dubois *v.*Lord, 5 Watts, 49; Newbaker *v.*Alricks, 5 Watts, 183; Evans *v.*Mengel, 6 Watts, 72; Hood *v.*Hood, 2 Grant, 229; Evans *v.*Mengel, 1 Pa. 68; Haines *v.*Stouffer, 10 Pa. 363; Sartwell *v.*Wilcox, 20 Pa. 117.

*Charles N. Brumm*and *George J. Wadlinger,*for defendant in error,

not heard. — There is no error in the charge of the court if taken as a whole. That it must be so considered .is decided in Blair Iron Co. *v.*Lloyd, 3 W. N. C. 103 ; Reese *v.*Reese, 90 Pa. 89; Pa. R. R. *v.*Coon, hi Pa. 430; Bitner *v.*Bitner, 65 Pa. 347.

Mere misstatement of facts by a judge are not the subject of a writ of error, unless he erroneously instruct that particular evidence is prima facie or conclusive: Hamet *v.*Dundass, 4 Pa. 178; Bitner *v.*Bitner, 65 Pa. 363 ; McDowell *v.*Oyer, 21 Pa. 417.

The court may express an opinion on the facts, if the facts are not withdrawn from the jury: Shoneman *v.*Fegley, 14 Pa. 376;

Johnston *v.*Com., 85 Pa. 54 ; Little Schuylkill, &c., Co. *v.*French, 81* Pa. 366; Burke *v.*Maxwell, 81 Pa. 139; Ralston *v.*Groff, 55 Pa. 276; Mohney *v.*Evans, 51 Pa. 80; Ditmars *v.*Com., 47 Pa. 335 ; Williams *v.*Carr, 1 Rawle, 420.

The supreme court will not reverse for slight error in the charge, which could have done the plaintiff in error no injury: Knapp *v.*Hortung, 103 Pa. 400; Chase *v.*Hubbard, 99 Pa. 226; Trego *v.*Pierce, 119 Pa. 139 ; Fire Ins. Co. *v.*Cusick, 16 W. N. C. 136.

The questions of fact involved have been submitted to the jury, and they have found for the defendant in error. The plaintiff in error has not shown that any injury was done her by the instructions of the court.

Per Curiam,

It is an undisputed fact in this case that the plaintiff below was employed as counsel by the defendant ; that he performed divers services for her in the court below, *589and argued her case here; and that, in addition, he had incurred certain expenses and made disbursements out of his own pocket for fees, &c., on her account. It was therefore proper for the learned judge below, in his charge to the jury, to say: “ Under the uncontradicted testimony in the case, this plaintiff would be entitled to a verdict against the defendant, less the amount which has already been paid, unless you shall find there was a contract between these parties which altered the relation between them, so far as the fees that the plaintiff had a right to charge are concerned.” There does not appear to have been any contract between them for any particular sum in the way of fees. The plaintiff offered to take defendant’s case upon a contingent fee, a certain sum to be paid down, and $600 additional in case of a recovery. The defendant did not agree to this ; she thought the amount asked was too much, and, in her letter of Dec. 6, 1880, requests the plaintiff to proceed with the case and charge a regular fee.

The only matter to criticise is the plaintiff’s charge of ten dollars per day for six days’ attendance in this court and the argument of her case here. In his letter of Dec. 10, 1881, the plaintiff says: “ I am willing to lose my time in taking the case to the supreme court, but if you will not do as other clients do, that is, pay the expenses, we will drop it.” The plaintiff claimed and recovered $60 for his time when in attendance in the supreme court, and he justifies this upon the ground that, as the defendant would not pay anything, and was trying to keep him out of his money, he “ wanted fair pay for everything.”

The entire case was a mere question of fact for the jury, and it was fairly submitted by the learned judge below. He left them to find whether there was an agreement as to fees for taking the case to this court, and, while the jury might very well have found the other way in regard to this particular item, it is not our business to revise verdicts. The charge of the court upon this question of fact was correct. If more specific instructions had been desired, they should have been asked for.

Judgment affirmed.

Note. — It has been suggested that, under the Act of May 20, 1891, the supreme court has an unlimited discretion in reviewing all cases of appeals. The Act is entitled “ An Act relating to appeals to the supreme court, and prescribing the powers thereof on appeals.” The 2d section provides that “the supreme court shall have power in all cases to affirm, reverse, amend or modify a judgment, order or decree appealed from, and to enter such judgment, etc., as the supreme court may deem proper and just, etc.” Section 1st provides for an appeal in cases of applications for the opening, vacating, and striking off of judgments ; and, while it would have been more accurate to have said in 12, “in all such cases” and “ such judgments,” it seems quite plain, from the reading of the whole Act, that *\*2 is limited to the cases mentioned in 1, and appeals allowed by $ 1 are to be decided “ in like manner as appeals from final decrees.”