Shiland v. Loeb — 69 N.Y.S. 11

Majority

p. 11

(58 App. Div. 565.)

SHILAND et al. v. LOEB.

(Supreme Court, Appellate Division, Second Department.

March 8, 1901.)

Headnote

1. Attorney and Client—Compensation—Tender oe Payment—Evidence Properly Excluded.

Where, in assumpsit for attorney’s services, the defendant alleged that he was liable for one-half of plaintiff’s bill, and that he had tendered payment of one-half of the amount of the bill presented, but did not allege that the money was deposited in court, or the offer kept good, evidence of a written stipulation stating that a tender of one-half the bill had been made by the defendant “in payment of all claims against him” was properly rejected, as no valid tender was alleged.

2. Same—Value op Services—Finding op Jury.

In assumpsit for attorney’s services, a tender “in payment of all claims” against defendant of a sum less than one-half the amount the jury found as the value of plaintiff’s services was no defense to the action.

8. Same—Bill Rendered not Conclusive of Value.

In «quantum meruit for attorney’s services, the plaintiffs were not concluded as to the value of their services by the amount of a bill rendered by them, where payment was neither made nor tendered.

Appeal from trial term, Kings county.

Action by Andrew Shiland, Jr., and another against Gustave Ldeb. .Prom a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

Argued before GOODRICH, P. J., and WOODWARD, HERSCHBERG, JERK'S, and SEWELL, JJ.

p. 12

Franklin Bien, for appellant.

Herbert B. Shoemaker, for respondents.

The plaintiffs, who are attorneys at law, sue for $560, on quantum meruit, for professional services rendered by them for the defendant in an action brought against him by Franklin' Paine in the United States circuit court. 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 hill 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 payment of all claims that you have against him,’ and the 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. The-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 , 21 N. E. 158 . 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 $375 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. 1

Judgment and order affirmed, with costs. All concur.

Cases cited

Noyes v. Wyckoff 114 N. Y. 204 N.Y. 1889-04-23 p. 12
Williams v. Glenny 16 N. Y. 389 N.Y. p. 12