Benjamin v. The McElwaine-Richards Company et al.

160; Judy v. Citizen, 101 Ind. 18; Over v. Schiffling, 102 Ind. 191; Whitehead v. Mathaway, 85 Ind. 85; Bake, Exrs., v. Smiley, Admr., 84 Ind. 212.

We think the question asked the witness was pertinent and proper in form, and that the statement of appellant's counsel sufficiently indicated what testimony was expected to be elicited in response to the question. The testimony proposed was competent in rebuttal, as tending to prove that Rial Benjamin, after the alleged transfer of the goods, was in charge of the same, not under a claim in his own right, but as the agent or employe of his brother, the appellant. Whether such testimony, if it had been admitted, would or would not have led to a different result, or to what extent it might have influenced the jury, is not for us to say, but where competent and material evidence is improperly rejected, the presumption will be indulged that the ruling was harmful to the complaining party, unless the contrary is made to appear from the record. Elliott's App. Proced., section 670, p. 612, and cases cited.

It is our opinion that the court erred in the exclusion of this testimony, and, consequently, in the overruling of the motion for a new trial.

The other questions presented, not heretofore disposed of in this opinion, may not arise again upon another trial, and we need not, therefore, now determine them. Judgment reversed.

Filed April 26, 1894.

Moore v. Orr et al.

No. 1,194.

MOORE v. ORR ET AL.

ATTORNEY AND CLIENT.-Attorney Rendering Services at Request of Attorney Employed.—Liability of Client.-Where an attorney renders services at the request of the attorney employed by a litigant, and the client silently acquiesces therein, he is entitled to recover from the client for such services.

ASSIGNMENT OF ERRORS.-Conjunctive Assignment.-Instructions to Jury. -An assignment that the court erred in giving several instructions, naming them conjunctively, can avail nothing unless all the instruc. tions so assigned are erroneous.

From the Howard Circuit Court.

F. F. Moore, for appellant.

J. C. Blacklidge, C. C. Shirley and B. C. Moon, for appellee.

Ross, J.—The appellant, who is an attorney at law, brought this action to recover for professional services rendered in proceedings to establish a ditch. Upon a trial by jury, there was a verdict for the appellees, and, after overruling appellant's motion for a new trial, judgment was rendered on the verdict.

The appellant insists that the court below erred in overruling his motion for a new trial. The reasons assigned, and for which a new trial was asked, were as follows:

First. That the verdict of the jury is contrary to law. Second. That the verdict of the jury is contrary to the evidence.

Third. That the verdict of the jury is not sustained by sufficient evidence.

Fourth. That the court erred in giving instructions numbered one, two, three, four, five and six asked by defendants (appellees).

Moore v. Orr et al.

Fifth. That the court erred in refusing to give instruction number nine asked by plaintiff (appellant).

The facts, as apparently conceded by the parties, are that in the fall of 1888 the boards of commissioners of Tipton and Clinton counties established and ordered the construction of a joint ditch, extending from one county into the other. Certain of the parties affected by the order appealed therefrom to the Clinton Circuit Court. The appellees, being among the petitioners, employed the firm of Waugh & Kemp, of Tipton, to resist the appeal and prosecute the proceedings. Mr. Kemp, of said firm of Waugh & Kemp, retained appellant to assist them therein. That the appellant rendered services is not denied; neither is it contended by appellant that he was ever employed by the appellees, the contention being that if he rendered services at the request of Waugh & Kemp, who were employed by appellees, he is entitled to recover from appellees for the services so rendered.

When a litigant accepts the services of an attorney, he impliedly undertakes to compensate him therefor. So when an attorney renders services at the request of the attorney employed by the litigant, the client silently acquiescing therein, he is entitled to recover from the client for such services. Brown v. Underhill, 4 Ind. App. 77, and cases cited; Hogate v. Edwards, 65 Ind. 372.

As heretofore stated, it is not contended, neither is it shown by the evidence, that the appellant was ever employed by the appellees, the only question being whether or not they accepted his services under such circumstances as the law would declare created an implied obligation to pay therefor. There is no conflict in the evidence that the appellees had no knowledge of the appellant's employment or connection with the cases until after the trial of the cause, but there is a conflict as to

Moore v. Orr et al.

their afterwards having acquired knowledge that appellant was acting for them. Where there is a conflict in the evidence, and the court or jury have passed upon it and determined upon which side there is a preponderance, this court will not disturb the finding or verdict. There was ample evidence to sustain the verdict.

Under the fourth cause for a new trial, in order that it avail appellant, it is necessary that all of said instructions, numbered one, two, three, four, five and six, be bad. The cause is a joint one as to all of the instructions, and if any one of them is good, the entire cause fails. That several of the instructions are good has not been questioned by counsel in their argument. For this reason we can not examine and pass upon the correctness of any one of the instructions.

The ninth instruction asked by the appellant, which the court refused to give, is too broad, and while it states. several general legal propositions as found in some of the adjudicated cases, they are not applicable to the facts in The court did not err in refusing to give this

this case. instruction.

We find no error in the record for which the judgment should be reversed.

Judgment affirmed.

Filed May 15, 1894.

Louisville, New Albany and Chicago Railway Company v. Widman.

No. 950.

LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY V. WIDMAN.

PLEADING.-Complaint.—Condition Precedent.—If a complaint based on a written contract containing a condition precedent to be performed by the plaintiff, does not allege that he has performed such condition, the pleading is fatally defective.

From the Harrison Circuit Court.

E. C. Field and W. S. Kinnan, for appellant.

C. L. Jewett, M. W. Funk, W. N. Tracewell, R. J. Tracewell and H. E. Jewett, for appellee.

DAVIS, C. J.-The first and second errors assigned

are:

1. That the complaint does not state facts sufficient to constitute a cause of action.

2. The court erred in overruling the demurrer to the complaint.

Appellee sued on a written contract which he sets out and makes part of his complaint. This contract, a bill of lading, stipulates specifically the terms upon which the shipment is made, and the conditions to be met upon the part of appellee as well as the part to be performed by appellant.

The contract set out in the complaint contains the following condition or specification: "Claims for loss or damage must be made in writing to the agent at point of delivery, promptly after delivery of the property. And if delayed more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event."

The appellee bases his right of recovery upon the fact, as alleged in the complaint, that appellant did not