
    JACKSON COUNTY,
    APRIL TERM, 1834.
    JUDGES — COLLETT AND WRIGHT.
    CHRISTY AND LIGGETT v. DOUGLAS.
    Attorney satisfying a debt of his client — money had and received — an agent receiving property — account of sales — honesty—professional services estimated by common price — arrest of judgment — defects caused by verdict.
    Where an attorney lias recovered judgment for bis client without a special agreement, he should estimate the service he has performed, and the price usually paid to the profession for such service, and that will be the amount of his compensation.
    It is not competent for the defendant to show that the claims put into his hands were of a desperate character, then to show that in such cases some clients gave (he attorney one-half, in order to establish a claim to one-half of the judgment.
    If the attornej' has taken property in satisfaction of a judgment and sold it, and taken notes from the purchasers, he must show an authority to sell and on a credit, before he will be permitted to show the outstanding notes. The authority to take property is admitted by the plaintiff’s suing the attorney for it, instead of vacating the satisfaction.
    Disclosing the sale of the property on trial for the first time, and then only by ' the exhibition of the notes taken in payment, without any account of sales, is a singular disclosure, one asserting no claim on account of its honesty or fairness.
    The attorney so receiving and selling property should do what honesty requires, render an account of sales, or give up the property, and not retain the proceeds, refuse all account of sales, and claim allowance for taking the property and making the sale. He should be honest, and show what he has done, and what is the common price, not invert the order and ask the price of possible service, with no evidence that he rendered such.
    486] *Onan appeal, the case is to be tried on the pleadings made up in the court below, unless on good cause the court allow an amendment on payment of costs; but on trial the plaintiff may abandon a count in his declaration or the defendant a portion of his setoff, and thus procure evidence for a future recovery of such abandoned claim.
    Where an attorney receives property for his client and discharges a judgment, if the property has availed the attorney as money and he refused to account, it may be recovered in assumpsit for money had and received, at the price he took it for.
    Where a party, having evidence in his power, refuses to produce it, the presumption of law is, that if produced it would be against him.
    After verdict, whatever in reason must have been proven to make out the case, the law holds was proven.
    A verdict cures a defective averment, which a demurrer might have reached.
    A declaration that the defendant received in satisfaction of a judgment of the plaintiff’s under his care money or property for his own use, is a sufficient consideration of a promise on his part to pay.
    Assumpsit. The declaration contains two counts; the 1st, avers that the plaintiffs had a judgment against Poor, rendered in the name of the defendant, for their use, on which the defendant was attorney of record, and as attorney of record without the knowledge or direction of the plaintiffs, received of Poor, horses to the amount of said judgment, to his, Douglas’s, own use, and satisfied and discharged the judgment, by means whereof the defendant became liable, &o., promised to pay; 2d, for money had and received.
    Plea, non assumpsit, with notice of setoff, for work and labor, as attorney, &c., for money, &c., goods sold, and horse feed.
    In the progress of the trial to the jury, it was proven, that the plaintiffs had the judgment described in the declaration, and that defendant received the amount of $329.40 in horses, and discharged the judgment, and on the part of the defendant, that he had done professional business for plaintiffs in that and other suits.
    The defendant offered evidence to show that the claims put in his hands were of a desperate character, in order, as he said, to deduce his right to one-half for his compensation, to be followed by evidence that others had allowed that portion in such cases. This was objected to.
    
      Prazee, for the plaintiffs, objected,
    that the notes were not evidence without proof of authority to take the horses and sell on credit, and that a sale was made on credit, in good faith, and these notes actually taken for the horses.
    * Murphy, for the defendant,
    insisted that the defendant was [487 the general agent of the plaintiffs,- and having disclosed the sale on credit and tendered the notes, that was all he was bound to show, in order to throw the onus upon the plaintiff, to show the conversion of the property into cash. He cited 1 Ch. Pl. 387, 8; 1 Harrison’s Dig. 28, 130.
   BY THE COURT.

The evidence is inadmissible; if the defendant has rendered services for the plaintiffs, he should show what he has done; and if there was no agreement as to price, then call witnesses to show what such services are worth, by showing what others in like business usually charge; this does not look that way.

The defendant then produced three promissory notes given to him or order, and offered them in evidence, with proof that he had tendered them to the agent of the plaintiffs, and then told them he had sold the horses on credit.

BY THE COURT. The evidence does not show a general, but, if anv, a special and limited agency. The authorities are not applicable to the case in proof. The authority to take horses, for the purpose of this suit is admitted, for the plaintiffs ratify the act and affirm it by suing for the value of the property in the hands of the attorney, instead of disaffirming the act, and proceeding to vacate the satisfaction of the judgment. The defendant, then, as a special agent, must show his authority to sell on credit, and the fact that he did sell on credit and took the notes offered, before they can avail him. This he does not attempt: that done, the tender of the notes might be proven, under a proper notice, and perhaps under the general issue ; but, without such proof, they are inadmissible. As to the disclosure of the acts of the agent, none is even now attempted ; no effort is made, or has been, to account for the sale of the horses, but the claim is, to allow the defendant to give his own declarations in evidence, to discharge himself, without in any way accounting with his principal for the horses, or showing when, where, and for how much the horses sold. That is a singular disclosure, one asserting no very strong claim on the ground of its honesty or fairness. If the defendant would place himself in an attitude for favor, let him do what honesty requires, show what he alone knows, what has been done with the property he received for the plaintiffs. Instead of which, he asks to be permitted to recover for his services, in attending to the sales, while he retains in his pocket the whole-proceeds, and refuses all account. Let him go further, and show what services he has rendered, and what they are worth, and not invert the order of things, by showing what possible services might be worth, without evidence that such were ever performed. He should, like a mechanic, show what he has done, and prove the common price of such work, not prove the common price of work, and leave it without any evidence that he performed any work. The straightforward, honest course, is the best one.

Bond, for the defendant, now asked leave to withdraw the notice of offset.

Brazee objected.

488] *BY THE COURT. We doubt if you can change the pleadings, in this stage of the case, unless under the statute on the payment,-®f costs. The statute is, that in appealed cases, the cause shall be tried on the pleadings in the court below, unless the court, on good cause, and on payment of costs, shall permit either party to amend. You can have leave to withdraw, on these terms.

But, although you cannot amend or change except on these terms, we think, from analogy with the practice, in case of defective counts in a declaration, you may abandon any part of the notice, which is merely saying to the jury, you do not wish them to regard any evidence offered under it. In this way, you may preserve evidence for any future controversy, so'far as it regards the setoff. But, it may be well to consider how much of this proposed defence is inadmissible under the general issue, which would be barred by the finding of the jury upon that issue.

Brazee for the plaintiffs, and

Murphy and Douglas for the defendant.

Murphy, for the motion,

cited Arch. C. Pl. 112, 120, 137, 1 Wh. Sel. 37, 8, 9 ; 1 Ch. Pl. 234, 5.

Drazee, for the plaintiffs,

cited Paley on Agency, 56, 68, 397, 400; Liv. on Agency, 375, 6 ; 7 Mass. 36, 323; 4 B. & P. 43; 6 East. 333.

The defendant declined to withdraw on terms, or abandon. Ta<? case was argued to the jury, by

COLLETT, C. J. charged the jury. That upon the count for money had and received, if they were satisfied that the defendant had received horses for the plaintiffs and sold them, or otherwise converted them to his own use, so that they availed him as money, he was liable for them as such, at the price they were received at, unless other evidence was given of their value. It was the duty of the defendant to give his principals an account of the sales; if there was a gain in the sales, it was theirs, and if a loss, in such a case, that also would be theirs. The defendant knew, and could show the fact, and if he kept back the evidence in his power, the presumption of law applied to him, that the evidence, if produced, would operate against him, and therefore, he withheld it. In the absence of such proof, you may take the price at which the defendant received the horses, and charge him with that price.

As to the defendant’s setoff, he is entitled to a fair and liberal compensation for the services rendered by him for the plaintiffs, to be estimated on the evidence, at the price the like business is compensated for here, as there is no proof of a special contract.

The jury found a verdict for the plaintiffs for one hundred dollars damages.

The defendant moved in arrest of judgment, because the first count in the declaration is repugnant, inconclusive, uncertain, and UnsufRcent. This motion was taken under advisement to [489 Scioto county.

COLLETT, C. J. It is a well settled rule, that after verdict, whatever in reason must have been proved to make out the case, the law holds was proven. A verdict cures a defective averment, which might have been bad if demurred to. In this case, the declaration is, that the defendant received, in satisfaction of the plaintiffs’ judgment, $350.40, for his own use, and in consideration of that, promised to pay the amount. This the verdict finds true. Surely this is a meritorious consideration. The attorney has got the plaintiff’s debt, and promises to pay him, and cannot he sue upon it? We think he can.

Motion overruled, and judgment for the plaintiff.

[On appeal pleadings and issues are same unless changed on leave; Kilgore v. Emmitt, 33 O. S. 410, 417.]  