Hettleman v. Frank

Thomas, J.,, delivered the opinion of the Court. This appeal is from a judgment of the Baltimore City Court. The suit was brought on the common counts in assumpsit, and there was filed with the declaration the following account: “Baltimore, Md., Eeb. 12, 1919. “Joseph Hettleman, To Israel Prank, Dr. “Sept. 28th — Cash money advanced by Israel Prank to Joseph Hettleman............$100.00 “Oct. 3rd. — Cash money advanced by Israel Prank to Joseph Hettleman........... 100.00 $200.00.” ³⁵³ The defendant pleaded never indebted as alleged and never promised as alleged, and for a third plea, alleged, “That the said sum of two hundrd dollars ($200.00) was received by him from the said plaintiff, on the days asi set forth in the writing attached to the declaration, but that the said sum of money was received by said defendant as a fee for professional services as an attorney-at-law and was so agreed to between the said plaintiff and the said defendant at the time .the said sum of money was received hy the said defendant from the said plaintiff.” The Court below sustained a demurrer to the third plea, and the case went to trial on issues joined on the first and second pleas, and resulted in a, verdict and judgment in favor of the plaintiff for $212.00. No objection was made in this, Court to the ruling of the Court below on the demurrer, but the appellant insists that there was serious error in the rulings of the lower Court on the evidence and prayers embraced in twenty-one bills, of exception.

The plaintiff offered, evidence tending to show that he was, a citizen of Russia, and had never1 declared his intention to become; a citizen of the United States. He was twenty-four years of age, and came to the United States in 1914, and lived in Baltimore until April 8th, 1917, when he went to work in the City of New York, and lived there1 until he returned to Baltimore on the; 29th of July, 1918. While living in New York he was required to register there under the Act of Congress of May 18th, 1917, known, as the Selective Service Law, and wasi classified by the Local Board in Class 5 F. Subsequently h,e received a notice from, the Local Board that he had been reclassified by that board and placed in Class 1 A. The Selective Service Rules and Regulations prescribed by the President of the United States; in pursuance of the Selective 'Service Law provided that a, resident alien, not an alien enemy, who had not declared his. intention to become a citizen of the; United States;, was; entitled to ³⁵⁴ be classified in Glass 5 F, and that the effect of such classification was “to grant exemption or discharge from draft,” while the effect of classification in Glass 1 was to render the man so classified “presently liable for military service in the order determined by the national drawing,” and as the plaintiff did not want to enter the military service, after receiving the notice of his reclassification, and before leaving New York, he went to see the chairman of the Local Board, explained the matter to him, told him he was a Russian alien and had only been in this country about four years, and gave him the names of some witnesses SO' that he might take the matter up with the Local Board for the purpose of securing his reclassification in Glass 5 F. He told the chairman of the Local Board that he was going, to- Baltimore and gave him his Baltimore address. The plaintiff also testified that some time after he returned to Baltimore from New York he “had a little case with the United Railways,” and that his sister-in-law sent him to Doctor Katzoff, who was well known at the Railways Oomp>any’s office, and that after1 he explained the case to Doctor Katzoff, Doctor Katzoff said to him,, “Frank, we will go down Saturday, and we will get the money from the United Railways”; that he met Doctor Katzoff at his house and they went to thei office of the “United Railways” and got $70.00; that Doctor Katzoff retained $35.00 of it for himself and gave him the remaining $35.00, and that when they were leaving the office of the Railways Company Doctor Katzoff said to him, “Mb.

Frank. I have got a man that is going to' take you out from the draft. His price¡, he saysi, is $300.00”; that he told Doctor Katzoff that he did not have more than $200.00 — $165.00, which was all he had saved, and the $35.00 he got from the Railways Company, and that Doctor Katzoff replied, “Well, I will take you over in his office and see what he can do”; that Doctor Katzoff took him right over to the defendant’s office and explained the matter to the defendant, and that the defendant said to him, “Well, Frank, being you are a poor ³⁵⁵ man, I will do it for you for $200.00”; that the defendant told him of a man he had gotten discharged from Gamp Meade, and of two other cases that he had pending, and that he would not make anything out of the $200.00, as he would have to make several trips to New York and would have to take a sleeper, which was expensive, and that he would keep an account of and would show him, all of his expenses,; that he then paid the defendant $100.00, and that the following week he paid him the other $100.00', for which payments he received from the defendant the following receipts : “Joseph Hettleman, Attorney-at-Law, “Rooms 27-29 Courtland Bldg., 215-217 Courtland Street, “Phone: St. Paul 2225. “Res.: 311 N. Broadway, Phone: Wolf 630-W. “Baltimore, Md., September 28, 1918. “This is to certify that I have this day received from Israel Frank the sum of one hundred dollars for professional services in connection for obtaining his discharge from the military service of the U. S. Army on the ground that he is an alien, a non-declarant and a subject of Russia, and who has been reclassified from Class 5F and placed in Class 1A by his Local Board. “Joseph Hettleman.” “Joseph Hettleman, Attorney-at-Law, “Rooms 27-29 Courtland Bldg., 215-217 Courtland Street, “Phone: St. Paul 2225. “Res.: 311 N. Broadway, Phone: Wolf 630-W. “Baltimore, Md., October 3, 1918. “This is to certify that I have this day received from Israel Frank the sum of one hundred dollars for profesisonal services in connection with the draft for the purpose of obtaining a release from the military service of the United States on account of illegal induction, all of this to be applied for expenses and ³⁵⁶ court costs in the procuring of a release; in the event of not obtaining a release for the said Mr. Israel Frank from tbe said military service by way of exemption as be is entitled to under tbe draft, then tbe said Joseph Hettleman is to return tbe said one hundred dollars to tbe'said Israel Frank. “Joseph Hettleman.” Tbe plaintiff further testified that after he had paid the defendant the $200.00 he went to his office nearly every day to inquire whether he had heard anything from New York in regard to tbe matter; that defendant told him that he had decided that he did not have to go1 to New York, but that he had written to the Adjutant General of New York, and showed him the letter and the reply thereto, but that he did not understand them, and that they did not “amount to much”; that every time he went to the defendant’s office the defendant told him that “there was nothing neiw”; that about .three weeks after he paid' the second one hundred dollars he received a notice from the Local Board that he had been reclassified in Glass 5 F; that as soon as ha g]ot the notice he called up the defendant by telephone and asked him if he had heard anything, and that the defendant said he had not, and that he then went to the defendant’s office, and after again asking1 him if there was anything new and if he had done anything, and after' the defendant, replied, “No Frank, even if they take you to the camps, I will take you out from the camps,” iu order “to get some money hack from him,” he told the defendant that he wanted to give the case up; and that tbe defendant replied that be did not care if be “give up or not,” that be had done “plenty” for tbe $200.00 paid him; that be then showed tbe defendant tbe postal card be bad received containing tbe notice of bis reclassification in Class F, and that tbe defendant became angry with him and told him to get out of his office. The postal card referred to was post-marked “New York, N. Y., ³⁵⁷ Oct. 17, 7:30 P. M., 1918, Sta.

B,” and tbe plaintiff, in giving his reasons for demanding a return of some of tbe money be paid the defendant, stated on cross-examination that tbe defendant bad not done anything towards securing bis reclassification or exemption from military service other than write tbe letter to tbe Adjutant General, and did not know until be showed him tbe notice that be bad been reclassified, and that be was sure that bis reclassification was brought about by tbe chairman of the Local Board to whom he talked before leaving New York; that the reason be “put this matter in the bands of tbe” defendant after having “put it in tbe hands of the chairman of the Local Board, was because I was not sure the chairman was going to do anything” ; that Doctor Katzoff told him, that be knew1 of several “fellows” that the defendant bad already gotten out of Oamp Meade, and that, be, the plaintiff, did not mind paying; the $200.00, which was all the money be bad in the world, if it became necessary to secure his discharge from camp. Tbe plaintiff also offered in evidence a certified copy of tbe oath taken by tbe defendant as Associate Member of tbe Legal Advisory Board of tbe Fourth Legislative District of Baltimore, 'Sections 10, 203, 15, 16, 11, and 25 rule B of tbe regulations prescribed by the President of the United States in pursuance of the Selective Service Law, and also a copy of said Bules and Begulat-ions and of the proclamation of the President. Doctor Solomon Katzofi, a witness for the defendant, testified that tbe plaintiff was injured by one of tbe cars of tbe United Bailways Company, and that he attended him; that they settled tbe matter at tbe company’s office; that while there the plaintiff showed him a postal card about something in reference to “Class A, in Class 1,” and told him that be was a Russian alien, and said that be did not know why be should not be in “Class 5”; that be told tbe plaintiff that he had beard of the defendant having similar cases, and advised him to go to see the defendant; that he bad no interest in ³⁵⁸ the ease “only to help the boy along”; that the- plaintiff said that he did not want to be dragged into the United States-Army and requested him to- fake him to the defendant’s office, and that they went there from the office of the United Railways Company; that he introduced the plaintiff to the defendant, and the “story was told” to- the defendant, and that the defendant- said he thought the plaintiff belonged in Class 5, and that he would take the matter up- for him; that “the arrangement for price was $300.00”; that plaintiff “only had $100.00 in his pocket”; that about a month or two after that, “I think it was after the Armistice was signed,” the plaintiff came to- him and said, “I am put in Class 5 now”; that at the time he took the- plaintiff to the defendant’s office the plaintiff was in possession of a postal card ordering him to- report for military service; that he, witness, read the card “where it showed that he had to report, to- go to camp,” and that that was the reason that the plaintiff got “a little bit ticklish about employing an attorney to- change the- class.” The defendant testified that he was an attorney-at-law and had practiced in Baltimore since 1913; that Doctor Katzoff brought the plaintiff to his office and introduced him, and that he made an agreement with the plaintiff; that Doctor Katzoff then left the office, and after he left the plaintiff gave him $100.00; that he did not know until “just now, at this trial,”