The Montgomery advertiser., 1902-06-11

Defendant employed plaintiff to repre- sent her interests in property claimed py
 receiver as property of her husband.
 Subsequent to this employment. defend.
 ant was made party to the suit against
 her husband. Plaintiff represented her
 by filing an answer and cross bill. which
 defendant signed. Held: that though
 plaintiff might not have been authorized
 under the express contract to represent defendant in the suit against her hus- band in the United States Court, never theless the jury were authorized under the pleading and the evidence to find her liable for services under an implied con- tract.
 ; implied contract; what not material to issue.-Where defendant employed plaintiff on an express contract, and after that time, without an express con tract he performed services for defend- ant in a suit to which defendant had subsequently been made a party. and the plaintiff sues for a reasonable compensa- tion for services rendered. and the issue is whether defendant is liable on an im- piled contract. 1t is immaterial to tnis issue what was the result of the case m which plaintiff represented the defendant; or what services were to be performed under tho express contract. or what may have been defendants purpose in em- ploying plaintiff.
 g. Same; what material to issue.- Where defendant employed plaintiff on an express contract. and after that time. without an express contract, ne per. formed services for defendant in a suit | to which defendant had subsequently | been made a party. and the plaintiff sues for reasonable cOmpensationsfor services rendered. and the issue is whether de- l fcndant is liable on an implied contract, a cross bill and answer prepared by | plaintiff and signed by defendant in the | suit are admissible to show the nature | of the services rendered. and also to | show knowledge on the part of defendant | of the rendition of the services and her | ar pfa of them
 | 4. Charge to jury; improper. | case where defendant employed plaintih l on an eXoress contract, and after that time, without an express contract, he performed services for the defendant in suit in the United States Court to which defendant had subsequently, been | made a party. and the plaintiff sues for | the reasonable compensation for services rendered. aud the issue Is whether the l defendant Is liable on an implied con- tract, 1t is not error to refuse to give l charge which instructs the jury that the plaintiff cannot recover for services rem dered in the United States Court; neither | Is 1t error to refuse to give the general affirmative charge at the request of the defendant
 5. Same; misleading.-In a case where | it is shown that a suit was instituted in | the United States Court against defend- ants husband. and receiver was ap- pointed; that defendant employed plain | tiff to represent her interests in property l claimed by receiver as property of her 1 husband; that subsequent to this em- plOyment. defendant was made a party | to the suit against her husband; that I plaintiff represented her in this suit, and sues for reasonable compensation for | services. a charge that instructs the jury 1 that if at the time the express contract | was made 1t was not in the contempla- l ton of the parties that plaintiff was to | render any other services for the defend- | ant other than concerning the property l claimed by the receiver as property Of her husband. and that if the defendant | did not afterwards employ plaintiff to I represent her in the litigation against | her husband. the plaintiff can recover | only for services rendered concerning | the property claimed by the receiver, is | calculated to mislead to the conclusion | contract to authorize recovery for ser | vices rendered in the United States l Court.
 | $. Same; improper such q case, a | charge that instructs The jury that If at | the time the express contract was made | 1t was not in the contemplation Of the | parties that plaintiff was to render any services for the defendant other than | concerning the property claimed by the
 | receiver az the prSperty of defendant s
 | husband. the plaintiff can recover only a
 l reasonable fee for such services is im- proper, because it takes no account of | an implied contract if found to exist. | l. Same: abstraet.-In such a case, a | charge that instructs the jury that the plaintiff cannot recover for any services | he may have performed in the case against defendants husband, unless de | fendant employed plaintiff to perform | such services and that if such services | were performed under a contract with the husband. the plaintiff cannot recover
 for such services is abstract, in sssum- | Ing that plaintiff acted under contract
 with the defendants husband | <. Same; misleading.-In an action 10 | recover for profess. onal services. where | defendant AuRlI9f lA IS0S PmnlnNpd plaintin on an express contract. and af- l ter that time, without an express con | tract. he performed services for defend-
 ant m suit against her husband. to which suit defendant had been subse- l quently been made party, a charge | which instructs the jury that the burden | to prove what servi ,es the plaintiff vas | to perform under the contract made on
 the 18th of, August. 1898. Is rpon the | plaintiff. and although he may have rem | dered defendant services in the suit | against her husband. he cannot recover unless they were rendered under the con | tract of August 13. 1898, or under a con- | tract with defendant authorizing such | services. is misleading in that it does not
 take into account liability on an implied | contract for services rendered in the suit | against defendants husband.
 | Affirmed.
 Opinion by Tyson, J.
 | w. w. Sanders and IT. A. Pearce. for | appellants.
 No brief for the appellee came to the | hands of the Reporter
 | EVANS V. SOUTHERN RAILWAY co. Action against Railroad Company to Re- cover Damages for Killing Stock.-Ap- l peal from the Circuit Court of Hale. l. Pleading and practice; actions ex | delicto and ex contractu can not be | joined.-A complaint which contains a | count in case, which is eX delicto, and another count which is in assumpsit is | subject to demurrer for misjoinder of ac- | tions.
 2. Same: when complaint Is in assump- | sit and not in case.-In an action against | q railroad company to recover damages | for the loss of hogs, a count of the com | plaint, which after averring that the | stock were killed by being run over by q l train operated on the defendants road | then ayers that the defendant had con- | tracted with the plaintiff that. in consid- | eration of the construction of right of | way over plaintiffs s lands, it would keep the railroad fences on both sides through | plaintiffs lands and keep and maintain | cattle guards at the boundary of plain | tiffs lands, and that while the defendant | had constructed such fences and cattle l guards. it carelessly and negligently al- | lowed the same to get out of repair and 1 become destroyed, and that by reason of | such failure and negligence of duty on | the part of defendant the plaintiffs stock 1 entered upon the defendants railroad | track and was killed, states cause Of action in assumpsit CEyson. J.. dissent | ing, holds that such count states cause | of action in easel
 | 3. Railroad company: effect of agree l ment with land owner to build and main l tain fences and cattle guards.-An agree. | ment by a railroad company with a land | owner that it will build and maintain fences and cattle guards in considerable