Opinion
7 Div. 417.
November 15, 1923.
Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.
L. H. Ellis, of Columbiania, for appellants.
While attorney's fees paid or incurred in defending an attachment suit are recoverable in a suit on an attachment bond, it must be shown that such fees were necessary and reasonable. Vandiver Co. v. Waller, 143 Ala. 411, 39 So. 136.
A. L. Crumpton, of Ashland, for appellee.
It is not necessary to offer opinion proof of value of attorney's fees for services rendered in defending the original suit, it being the duty of the jury to determine the reasonable value of the services. Lowe v. Reed, 207 Ala. 278, 92 So. 467; Citizens' Co. v. Central Co., 200 Ala. 18, 75 So. 330; Spivey v. McGehee, 21 Ala. 417.
The action was brought to recover damages sustained by the wrongful and malicious suing out of an attachment. Reference is made to the report of the case on former appeal. 205 Ala. 110, 87 So. 527. After the return to the trial court, plaintiff filed additional counts A-1 and A-2, whereupon defendants refiled to the complaint as amended and to each count thereof, separately and severally, the demurrer which had been previously stricken by the court. This demurrer, as to the original counts of the complaint, was again, on motion of plaintiff, stricken from the file. In this there was no reversible error, the amendment of the complaint having effected no change in the status of the pleading so far as concerned the counts of the original complaint. 205 Ala. 110, 87 So. 527.
Defendants objected to some parts of the opening statement made to the jury by counsel for plaintiff. The statements reproduced in the bill of exceptions are so fragmentary and meaningless withal that we are clear to the conclusion that they afford no substantial reason for reversal. Judgments that may have been affected by improper appeals to the jury will be reversed, but that result cannot be made to follow upon every loose remark made by counsel in the heat of argument or advocacy. Probable injury must be made to appear, and that is not the case here.
Plaintiff sought to recover the amount of a fee he had paid his attorney for services rendered in defending the attachment suit, and was allowed to prove the payment of a certain sum to his attorney on that account. In this there was no error, for the evidence went a part of the way at least to proving plaintiff's right to such damages. Higgins v. Mansfield, 62 Ala. 267. But there was no testimony addressed directly and specifically to the proposition that the services of an attorney were necessary or that their reasonable worth was equal to the sum paid, and upon this defendants requested a charge in writing as follows: "The court charges the jury that if you believe the evidence you cannot assess any damages for the plaintiff for or on account of any lawyer's fees," which the court refused. The uniform language of the decisions is that reasonable and necessary attorneys' fee incurred in defending the attachment suit are recoverable as a part of the lawful damages in an action on the attachment bond. Dothard v. Sheid, 69 Ala. 138, and cases cited. As for the matter of necessity, the evidence shows that counsel was employed and the record of the attachment suit, introduced in evidence, disclosed such a contest that a jury may have properly been allowed to infer a necessity for competent legal advice and assistance. As for the reasonableness of the fee paid, it is stated that evidence of the contract price for services, though not conclusive, is admissible in connection with other evidence tending to show what in fact was reasonable compensation. Plymouth Gold Min. Co. v. U.S. Fidelity, etc., Co., 35 Mont. 23, 88 P. 565, 10 Ann. Cas. 951. No doubt evidence as to the amount paid for the services of an attorney is likewise admissible; but whether such evidence without more will justify an award of substantial damages we need not now decide. Our opinion is that the evidence shown by the bill of exceptions afforded a sufficient basis for an award of nominal damages at least, and that, since the charge under review would have denied even that, there was no reversible error in its refusal.
The attachment had been levied on plaintiff's crop in the field, among other things, to quote the sheriff's return, on "about four bales of cotton in field," and plaintiff contended and adduced evidence tending to show that the cotton had been left in the field and exposed to the weather so long and had been so negligently harvested as to materially affect its value, thereby augmenting plaintiff's recoverable damages. Vandiver v. Waller, 143 Ala. 418, 39 So. 136. In these circumstances defendants should have been allowed, on cross-examination, to ask plaintiff, testifying as a witness in his own behalf, whether, when the cotton was sold, it did not bring the highest market price for good cotton. This was a fair question in rebuttal, and its exclusion was error. This error was repeated in the ruling shown by assignment 19.
Plaintiff, undertaking to show that the issue of the attachment had injured his credit, testified to one instance in particular among others, viz. that he had tried to buy some stuff from D. M. White at Goodwater, but could not get it on credit. Defendants should have been allowed to ask the witness, plaintiff, the question shown in the twelfth assignment of error, as going to show in rebuttal that plaintiff had never had any personal credit with White. There is some doubt as to the proper construction of the question, appellee's contention being that it called for White's custom in general; but we construe the question as designed to elicit the facts as to plaintiff's personal credit with White. If this line of inquiry is followed on another trial, this obscurity will no doubt be cleared up.
We think the questions shown in assignments of error 13 and 14 had some, though slight, bearing on the issue whether the contract between the parties, out of which arose the attachment suit, was void because executed on Sunday. Code, § 3346. We see no reason why they should have been disallowed.
Charge R, given at the request of plaintiff, should have been refused as being of obscure meaning and misleading tendency.
Plaintiff's contention was that the contract between himself and defendant Street, on which the attachment suit had been brought, was void because made on Sunday; but the evidence on this issue was in conflict, and the general affirmative charge as to each count of the complaint was properly refused to defendants.
Charges 11 and 12 were refused to defendants for the reason that there was evidence tending to show that plaintiff's cotton and corn were damaged by reason of the levy of defendant Street's attachment and their consequent exposure to weather, and, while the jury should have been afforded more exact data for the assessment of such damages, if any, the evidence authorized the assessment on that account of nominal damages at least.
Charge 14 was properly refused. The question as to plaintiff's liability to defendant Street — the other defendants being his sureties in the attachment bond — appears to have been adjudicated in plaintiff's favor in the attachment suit, and for this reason also charges 15 and 17.
Charge 16 was well refused. Actual, substantial damages, in that plaintiff's cotton was levied upon and sold, were shown.
It is not deemed necessary to consider in detail some other questions argued in the briefs. For the error shown the judgment must be reversed and the cause remanded. On another trial the pleadings should be reformed.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.