Audley v. Jester — 148 A.D. 94

Majority

p. 94

Henry Audley, Appellant, v. Elias T. Jester, Respondent.

First Department,

December 29, 1911.

Headnote

Attorney and client —facts showing account stated — contract between attorney and client.

An account stated between an attorney and Ms client is established where it appears that after a consultation the client acquiesced in the statement presented by the attorney, paid a small sum as evidence of Ms acceptance of the account and subsequently retained statements of the account without objection.

Evidence in an action against a client brought by the assignee of his attorney at law upon an account stated, examined, and held, that a verdict for the plaintiff was not contrary to the law or evidence so as to justify the trial court in setting it aside.

While agreements between attorney and client' are subject to careful serutmy by the court, they will be enforced uMess tainted by fraud mistake, false representations or other unfair Mducement.

Appeal by the plaintiff, Henry Audley, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 10th day of Hay, 1911.

Walter B. Walker, for the appellant.

William W. Mumford, for the respondent.

This is an appeal by plaintiff from an order setting aside a verdict in his favor and granting a new trial. The plaintiff sues as assignee of a firm of lawyers upon an account stated between the assignors and defendant, a client. The complaint alleges the rendition of services covering a period of three years; a statement of the account between the parties; tire agreement upon a certain sum as the amount due the lawyers; the promise of the defendant to pay; his payment of a small sum on account and his refusal to pay the balance. The answer consists of a general denial of every allegation of the complaint except the copartnership of the attorneys.

The evidence presented a typical case of an account stated,

p. 95

showing a consultation between the lawyers and defendant as to the amount due them; a statement of the amount which they claimed to be due; a discussion as to the amount and as to defendant’s liability for some of the charges; a final acquiescence by defendant in the account as presented; the payment of a small' sum on account expressly made to evidence, his acceptance of the account; and repeated receipts and retention by him of statements of the account without demur or objection. Defendant neither pleaded nor proved that any unfair advantage was taken by him or any mistake made, or that the attorneys had been guilty of any fraud or misrepresentation, and although he had denied in his answer the rendition of any services, he admitted upon the trial that they had rendered services for which he was still indebted to them. The case throughout was tried with great liberality to defendant, and was submitted to the jury with a charge to which he found no objection.

The order setting aside the verdict recites that it is made upon the “ exceptions taken by the defendant to the Court’s refusal at the close of the plaintiff’s case and at the close of all the testimony to dismiss the complaint, and because said verdict is contrary to law.” We construe this as meaning that in the. opinion of the learned trial justice he should have dismissed the complaint at one stage of the case or the other. If he had done so, on the pleadings and evidence, he certainly would have committed error, for, under the view most favorable to defendant, there were questions of fact for submission to the jury. The verdict was not, in our opinion, contrary to law, nor yet contrary to the evidence, and we can discern no reason for disturbing it, unless it can be said that the relation of attorney and client forbids an enforcible agreement as to the amount to be paid for past services. There is no such rule at law, and while agreements between attorney and client are justly subjected to careful scrutiny, they are certainly not incapable of enforcement when deliberately entered into and untainted by fraud, mistake, false representation or other unfair inducement. The jury were justified in finding upon the evidence that the agreement between the defendant and his lawyers was of this character.

p. 96

The order appealed from must be reversed and the verdict reinstated, with costs to the appellant. .

- ■ -Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Order reversed, with costs, and verdict reinstated.