Shiland v. Loeb — 58 A.D. 565

Majority

p. 565

Andrew Shiland, Jr., and Robert B. Honeyman, Respondents, v. Gustave Loeb, Appellant.

Headnote

Tender— “ inpayment of all claims" — when a hill rendered, for services is not conclusive as to their value.

An offer of money “ in payment of all claims ” is not unconditional, and, therefore, does not constitute a valid tender.

Persons who render a bill for services, the amount of which is neither paid nor tendered, are not concluded as to the value of their services by the amount ■ stated in the bill.

Appeal by the defendant, Gustave Loeb, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 18th day of June, 1900, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 18th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Franklin Bien, for the appellant.

Herbert B. Shoemaker, for the respondents.

The plaintiffs, who are attorneys at law, sue for $360 on quantum meruit, for professional services rendered by them for the defendant in an action brought against him in the United States "Circuit Court by Franklin Paine. The answer denied the rendition of services to him individually and solely, and alleged that it was agreed that the services should be paid for, one-half by one Duryea and one-half by the defendant, and that the plaintiffs having rendered a bill for $375, the defendant tendered one-half that amount. It was not alleged that the defendant had made any payment of the amount into court or had continued in readiness to pay the same. The jury rendered a verdict for $400 and interest, and the defendant appeals.

At the trial a stipulation between the parties was offered in evidence that the defendant’s attorney had “tendered to plaintiffs $187.50 in U. S. currency, at the same time stating, ‘ at the request of Hr. Loeb I herewith tender to you the sum of $187.50 in pay

p. 566

ment of all * claims that you have against him,’ and that plaintiffs thereupon declined to accept the same in payment of all claims,” the plaintiffs reserving the same rights to object to the admission of the stipulation in evidence that they would have had to the admission of evidence of the fact admitted, had not the stipulation been made.

IThe tender was not unconditional. It was an offer of money in “settlement of all claim. This does not constitute a tender. (Noyes v. Wyckoff, 114 N. Y. 204 .) Nor was any offer made to pay the amount at the trial. Besides, the jury found the value of the plaintiffs’ services to have been more' than twice the amount of the -offer, so even a valid tender of the amount offered would not have been a good defense to the action. This disposes of all exceptions to the refusal of the court to allow evidence on the subject of a tender.

The plaintiffs were not concluded as to the value of their services by the bill for $315 rendered by them, as the amount was neither paid nor tendered. ( Williams v. Glenny, 16 N. Y. 389 .)

We have examined the exceptions respecting evidence and charge, and find none tenable.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.

Cases cited

Noyes v. Wyckoff 114 N. Y. 204 N.Y. 1889-04-23 p. 566
Williams v. Glenny 16 N. Y. 389 N.Y. p. 566