¶1dissenting.
¶2The entire instruction alluded to in the above opinion is as follows:
¶3“If the jury believe from the evidence that the plaintiff performed services as attorney at defendant’s request, for which he has not been paid, and that no price was agreed upon, then the law will imply a promise from defendant to pay plaintiff for such services, what the jury may find, from the evidence, the same are reasonably worth.
¶4And in estimating the reasonable worth of such services, the jury are to consider and weigh any testimony, admitted in evidence, of attorneys of good standing, as to what may be the usual compensation for such services, as may be shown by the evidence to have been rendered.
¶5And the jury may also consider any facts shown in the evidence, as to the amount of labor and time properly expended by plaintiff in such services and the benefit which defendant may have derived from them; the amount involved in the controversy in which such services were rendered; the nature of the controversy, as to whether difficult or doubtful questions were involved; the ability and experience of plaintiff; and the result of the controversy.
¶6From any sum which the jury may find from the evidence that the defendant owes the plaintiff for services, if anything, the jury are to deduct $177.12 for money of the defendant in the hands of the plaintiff on the land account.”
¶7This instruction is objectionable and should not have been given because its second sentence singles out and gives undue prominence to the testimony of the attorneys upon the question of value. Its language is mandatory and has a strong tendency to divert the attention of the jury from the other proof upon the subject, some of which tends to show that appellee himself had put a considerably lower valuation upon his services than that testified to by the experts. Scott v. People, 141 Ill. 195, 208; Head v. Hargrave, 105 U. S. 45. In the Scott case, supra, the jury were to be told that they “ were at liberty to take into consideration the testimony of the medical experts,” (here they were told that they “ are to consider,”) and they were also to be told to consider such testimony “in connection with all the other facts and circumstances ” in proof (which here they were not)'; and yet the Supreme Court held the instruction to be “clearly erroneous”because it “directed the attention of the jury exclusively to the testimony of the expert witnesses.”
¶8(The italics are the writer’s.)