Wood v. Baldwin — 31 N.Y. St. Rep. 207

Majority

p. 207

William H. Wood, Resp’t, v. Elisha T. Baldwin, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 12, 1890.)

Headnote

Services—Evidence.

In an action for professional services as attorney, plaintiff testified that he was employed by defendant to collect a bill against one Robinson: that he defended a suit brought by Robinson against defendant; that afterwards he brought an action in the supreme court for defendant against Robinson; that the value of such services was fifty dollars, and judgment was given for that sum. Held, that the value of the service was predicated merely on what was done in the action which he brought, which was the service set forth in the bill of particulars, and not on what was done in the suit he defended.

Appeal from a judgment of county court, affirming judgment of a justice’s court.

The facts appear in the opinion of the county judge, as follows:

(tUERNSEY, County Judge.—The plaintiff brought this action in justice’s court (filing his complaint in writing) to recover for services rendered the defendant as an attorney at law, demanding therein fifty dollars. Issue was joined, defendant interposing an answer of general denial, and plaintiff filed a bill of particulars as follows:

Eishkill Landing, May 31, 1889.

E. T. Baldwin, _ To William H. Wood, Dr.

_ To services in case of Baldwin v. ¡Robinson, $50.

Defendant failed to appear upon the adjourned day, and the following was all the evidence given or offered by plaintiff:

William H. Wood sworn: I am the plaintiff; reside at the town of Eishkill; my profession is lawyer, and have been for nearly ten years; I was employed by defendant to collect a bill against a man by the name of Robinson; I went to Hopewell Junction and defended a suit brought by Robinson against Baldwin, after the conclusion of that suit I brought an action in the supreme court for Mr. Baldwin against Robinson ; I paid to Mr. Baldwin the sum of $169, as the result of that action; I know the value of such services as rendered; the value of such services is fifty dollars ; there has been no payment made on this bill.

There can be no question but that, if the defendant had appeared on the adjourned day and the foregoing testimony taken without objection on his part, the judgment for the plaintiff furnished thereon should be sustained.

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It is claimed by the defendant and appellant that the evidence given was not legal or competent, and that as the defendant did not appear he waived no right and may, on this appeal, assert his objections for the first time and with the same effect as though present and taking them at the trial.

This is true, and he now asks for a reversal of the judgment against him because, as he insists, evidence of services not embraced in the pleadings and value thereof was given; that the value of all the services was given in a lump, including those not pleaded ; that there is not legal and competent evidence to support the judgment.

The plaintiff sued only for services performed in the action brought in the supreme court. The bill of particulars consists of the same item. Upon the trial the plaintiff incidentally stated the fact that he “went to Hopewell Junction and defended a suit brought by Robinson against Baldwinbefore this he had stated he was employed to collect a bill against Robinson, and immediately after states that he brought suit against Robinson, his ■client Baldwin being plaintiff, the result of which was the payment to Baldwin of $169; and then he says: “ There has been no payment made on this bill.” What bill? Ho conclusion can be reached than that the bill of particulars and the claim in the complaint was meant and referred to, confining the claim in the suit to that, and to no other.

The plaintiff swears he was employed to collect a bill against Robinson by Baldwin. The employment of an attorney in a matter is as to the whole subject. The service he is to, or may, render is essentially single, though it may require many distinct steps on his part before the purpose of the employment is accomplished, and it is as competent on the part of one who has personal knowledge of all the steps to fix a gross value, as to state item by item the value of the services for each step.

The objections to fhe legality and competency of the evidence cannot be sustained.

- The witness was an expert as to value of the services rendered; he was an attorney of ten years practice, and states he knew the value of each service as rendered.

All the circumstances, all the work performed, all the facts relating to the suit and collection of the money paid to Baldwin, were within the personal knowledge of the witness, and having this personal knowledge of all the facts, and being shown an expert, his testimony as to value was admissible, even though every distinct act performed in the course of his employment was not stated or shown upon the record.

Facts founded upon knowledge, even estimates of value furnished upon knowledge, are admissible. Johnson v. Myers, 103 N. Y., 663 ; 3 N. Y. State Rep., 651; Hallahan v. R. R. Co., 102 N. Y., 194 ; 1 N. Y. State Rep., 367.

Judgment affirmed, with costs.

Herrick & Losee, for app’lt; C. Morschauser, for resp’t.

The complaint alleges that plaintiff performed work for defendant reasonably worth fifty dollars. The bill of particulars is “ To services in case of Baldwin v. Bobinson, fifty dollars.”

On the trial the defendant did not appear, and plaintiff testified, “ I went to Hopewell Junction and defended a suit brought by Bobinson against Baldwin. After the conclusion of that suit I brought an action in the supreme court for Baldwin against Bobinson. I know the value of such services rendered. The value of said services is fifty dollars.”

Judgment went for the plaintiff for that sum. The defendant appeals and for cause of reversal alleges that the value was predicated not merely on what was done in the action of Baldwin v. Bobinson, but in part on what was done in Bobinson v. Baldwin, which was not included in the bill of particulars, and for which no recovery could be properly had.

That question is discussed by the court below and the conclusion there reached is that a proper construction of the testimony shows that the witness did not base his estimate of value to any extent upon what was done in the action the witness defended, but that the fifty dollars value was applied solely to the action of Baldwin v. Bobinson, where he brought the suit.

An examination of the testimony shows that conclusion clearly right.

Immediately before giving his estimate of value the witness was speaking of the action of Baldwin v. Bobinson, and his declaration must be regarded as referring to the antecedent immediately preceding.

The rule of grammar, which is also a rule of law, is that a relative clause relates to the nearest antecedent that will make sense. The rule is as ancient as the language.

Finch in his discourse on law, book I, chap. 3 (p. 8 in ed. of 1759), states it thus: “ Words in construction must be referred to the next antecedent where the matter itself doth not hinder,” and cites cases as far back as Edward Fourth.

Comyns Digest, vol. 5, marg. p. 332, says, the relative is referred to the last antecedent, and cites numerous cases.

Broom, in his Maxims, cites Hoy, to the effect that relative words refer to the next antecedent, and says the “ last antecedent ” is the last word that can be made an antecedent so as to make sense.

In Baring v. Christie, 5 East, 398, the language under consideration was “ George Dominick of the ship called the M. V. of the town of Philadelphia,” which was held to mean that not Dominick, but the ship, was of that town, and for the reason that the clause could not be held to include Dominick the ship’s papers were adjudged illegal as not disclosing the habitation of the master.

Applying this rule to the testimony in this action it is plain that the language of the witness “ the value of said services is fifty dollars,” should be referred, not to all the services testified

p. 210

to, but to the services in the action of Baldwin v. Robinson, which in his testimony immediately preceded his valuation.

Those were the services set out in the bill of particulars for which a recovery might properly be had.

It follows that no error was committed, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.