In Illinois, when a declaration in an action at law alleges a
joint liability of two defendants, a plea in bar which does not
traverse this allegation admits it, and makes the declarations of
one defendant not served with process evidence against the other
who has appeared and answered.
In an action by an attorney to recover for services rendered in
defending a suit for the foreclosure of a mortgage upon a tract of
land near a large town, and in preventing the foreclosure, and in
bringing about a favorable sale of the property, evidence as to the
character of the land and its possible value as a future suburb of
the town is admissible.
As the length of hypothetical statements presented to a witness
to ascertain his opinion upon any matter growing out of the facts
supposed necessarily depends upon the simple or complicated
character of the transactions recited, and upon the number of
particulars which must be considered for the formation of the
opinion desired, it mast in a great degree left to the discretion
of the court, and in this case that discretion was properly
exercised.
The case is stated in the opinion of the court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is an action to recover compensation for services rendered
by the plaintiffs below to the defendants in effecting a sale of
certain lands in Indiana and in various legal proceedings
concerning the title, or claims against them. The declaration
alleges a joint contract and liability by the defendants below,
Caroline Forsyth and Jacob Forsyth, her husband, but the summons
was served on her only. She appeared and pleaded the general issue.
A statute of Illinois provides that,
Page 120 U. S. 74
in actions on contracts, express or implied, against two or more
defendants as partners, joint obligors, or payors, proof of their
joint liability or partnership shall not be required to entitle the
plaintiff to judgment unless such proof shall be rendered necessary
by a plea in abatement or a plea in bar denying the partnership or
joint liability, verified by affidavit. The joint contract and
liability of the defendants, therefore, stood admitted by the
pleadings, and this is a sufficient answer to several objections
taken to the admissibility of statements and the proof of acts of
the defendant Jacob Forsyth. Being jointly liable with Caroline on
the contract in suit, his declarations respecting the services
rendered under it were as admissible as if made by her.
The services for which compensation is sought were not only
those required of attorneys and counselors at law, but were also
those of negotiators seeking to accomplish the result desired by
consultation with proposed purchasers, and presentation to them of
the advantages to be derived from the property, present and
prospective. Varied as were the legal services of the plaintiffs,
it is plain from the testimony that those rendered by negotiation
and consultation and presentation of the uses to which the property
could be applied were far more effective and important. This fact
necessarily had a controlling weight in estimating the value of the
services. It is difficult to apply to such services any fixed
standard by which they can be measured and their value determined,
as can be done with reference to services purely professional.
There is a tact and skill and a happy manner with some persons
which render them successful as negotiators, while others of equal
learning, attainments, and intellectual ability fail for the want
of those qualities. The compensation to be made in such cases is,
by the ordinary judgment of businessmen, measured by the results
obtained. It is not limited by the time occupied or the labor
bestowed. It is from overlooking the difference in the rule by
which compensation is measured in such cases, and that in cases
where the services are strictly of a professional nature, that
several objections are urged for reversal of the judgment recovered
which, if this difference were regarded, would not be seriously
pressed.
Page 120 U. S. 75
The services rendered related to so many different subjects that
it would require a long narrative to describe them with much
detail. It is sufficient for the consideration of the questions not
disposed of by what has already been said to state generally the
main facts of the case. Caroline Forsyth, for several years before
the employment of the plaintiffs, had been the owner of a tract of
land consisting of 8,000 acres in Indiana, about sixteen miles from
Chicago. Only about 1,000 acres of it were fit for cultivation. The
principal value of the tract was owing to its proximity to Chicago
and to the belief that it could be made use of for manufacturing
and commercial purposes as a suburb of that city. It yielded no
revenue. There were taxes due upon it, and portions of it had been
sold for taxes. It was subject to a mortgage for $163,000, executed
in 1875 upon a loan of $100,000, which, with the stipulated
interest to maturity, amounted to that sum, and a suit had been
commenced by its holders in the circuit court of the United States
in Indiana for its foreclosure and the sale of the premises.
The defendants were without means to meet the mortgage debt or
pay the taxes due, or even the expenses of agents dealing with the
property, and relied entirely upon effecting a sale to obtain what
was needed for these several demands. The defendants had previously
made an effort to sell the property to a stock company in London,
and had signed certain documents for that purpose. The company
claimed a right to a conveyance pursuant to a contract made upon
the supposed authority of those documents. Another party, by the
name of Horne, claimed that he had negotiated a sale, and was
demanding $50,000 for his services.
It was when the property was in this condition, and when its
entire loss seemed highly probable from the inability of the
defendants to meet the demands pressing for payment, that the
plaintiffs were retained to help them out of their complicated
embarrassments and effect a sale of the property, the defendants
promising them, in case of success, compensation which should be
"large, liberal, and generous." The plaintiffs entered upon their
employment, and during the following
Page 120 U. S. 76
nine months, by arduous labor, constant negotiation, and great
tact, they accomplished what was desired. The suit to foreclose the
mortgage was resisted and its dismissal obtained. The property was
sold for one million of dollars, onethird of which was paid in cash
and the balance secured by mortgage on the property. The existing
mortgage was then redeemed, a large reduction from the amount
claimed having been first obtained. The taxes and other debts were
paid, and the claim of Horne was compromised and settled. A suit
commenced pending these proceedings by the trustee of the London
stock company to compel a conveyance of the property was defended
and ultimately defeated. It would serve no useful purpose to detail
the number of particulars in which the skill and tact of the
plaintiffs were exhibited. The claim made by them for compensation
was resisted, and this action was thereupon brought. The jury found
that it should have been $40,000, and gave their verdict for that
amount. Of the justice of this amount we are not to determine. We
are called upon only to see whether any error was committed in the
manner in which the case was submitted to the jury.
We see nothing in the objection that evidence was admitted as to
the character of the land sold or its possible value as a future
suburb of Chicago. Its character in this respect might increase or
diminish the chances of its sale. The only points which we find in
the record calling for examination arose from the hypothetical
statements submitted to witnesses, with inquiry as to the value of
the services thus supposed to have been rendered. There were such
hypothetical statements upon five subjects, which embraced matters
that were to be disposed of before the consummation of the contract
of sale. They embody with some fullness the matters supposed by the
plaintiffs to have been established, and it was only upon that
assumption that the opinions of the witnesses as to the value of
the services rendered were given. If the assumption was erroneous;
if the matters supposed to be established were not, in the judgment
of the jury, in truth established, the opinions went for nothing,
and so the court instructed the jury.
Its language was as follows:
Page 120 U. S. 77
"As to the questions, you must understand that they are not
evidence; they are mere statements to these witnesses, called by
the respective parties, of what the party putting these questions
claims the proof shows was the nature and amount of plaintiffs'
services rendered, and, upon the hypothesis or assumption of these
questions, the witnesses are asked to give their estimate of the
value of these services. You must readily see that the value of the
answers to these questions depends largely, if not wholly, upon the
fact whether the statements made in these questions are sustained
by the proof. If the statements in these questions are not
supported by the proof, then the answers to the questions are
entitled to no weight, because based upon false assumptions or
statements of facts."
And as to the estimate of the value placed by the witnesses upon
the services, the language of the court to the jury was as
follows:
"You are not bound by the estimate which these witnesses have
put upon these services. They are proper to be considered by you,
as part of the proof bearing upon the question of value, as the
testimony of men experienced in such matters, and whose judgment
may aid yours. But it is your duty, after all, to settle and
determine this question of value from all the testimony in the
case, and to award to the plaintiffs such amount by your verdict as
the proof satisfies you is a reasonable compensation for the
services which, from the proof, you find plaintiffs rendered, after
deducting the amount the plaintiffs have already received for such
services."
The length of the hypothetical statements is urged as an
objection to them. They were lengthy even without the exhibits,
which constituted the larger portion, but the court took especial
care to impress upon the jury that they were not to consider the
statements as facts in the case, but merely as assumptions of the
party propounding the questions.
Cowley v. People, 83 N.Y.
464, 470. The witnesses do not appear to have been confused by
their length. They expressed no inability to fully comprehend them.
Nor did the court, though complaining of their length, indicate
that they were
Page 120 U. S. 78
unintelligible to the jury or tended in any way to turn their
minds from the points in issue.
The length of hypothetical statements presented to a witness to
ascertain his opinion upon any matter growing out of the facts
supposed will necessarily depend upon the simple or complicated
character of the transactions recited and the number of particulars
which must be considered for the formation of the opinion desired,
and this subject, like the extent to which the examination of a
witness may be allowed, must in a great degree be left to the
discretion of the court.
We do not see that the rights of the defendants were at all
prejudiced by them. The judgment, therefore, must be affirmed; and
it is so ordered.
Affirmed.