Leavitt v. Chase — 38 N.Y. St. Rep. 356

Majority

p. 356

John Brooks Leavitt, Resp’t, v. Louis S. Chase, App’lt.

(New York Superior Court, General Term.,

Filed April 16, 1891.)

Headnote

Attorneys—Compensation.

_ Plaintiff entered into an agreement in October, 1882, to perform professional services for defendant as attorney. He subsequently wrote defendant a letter abrogating the agreement, but performed the services. In an action to recover their value, defendant and plaintiff's brother testified that the letter was withdrawn and the agreement reinstated. The brother was not an attorney nor the partner of plaintiff, and no authority to dct for him was shown. Held, that the question was one for the referee; that the agreements made between defendant and plaintiff’s brother were not binding on plaintiff unless communicated to and ratified by him, and that a finding in plaintiff's favor would not be disturbed.

Appeal from judgment in favor of plaintiff, entered on the report of a referee.

Robert G. Ingersoll, for app’lt; Austen G. Fox, for resp’t.

This action was brought to recover for legal services rendered by plaintiff to defendant. The substantial questions litigated before the referee are questions of fact, and the determination of ’this appeal has required an extended examination of the extremely voluminous briefs and a large portion of the testimony before the referee.

There was a sharp conflict of evidence as to the agreement under which the plaintiff performed the services. Whether it was xinder the agreement made October 1, 1882, or whether that agreement had been abrogated and the services performed without a special contract as to the compensation to be paid, depended upon whether the referee believed the testimony of the plaintiff, or that of the defendant corroborated by the evidence of the plaintiff’s brother who had been connected with plaintiff in business, but who now appears as attorney for the defendant.

It was conceded that a letter had been written by plaintiff to defendant on December, 1883, which, would abrogate the agreement of October, 1882. Defendant, however, claims that that letter had been withdrawn and the agreement of October, 1882, reinstated. That question was for the referee.

p. 357

The other questions were passed on by the referee in favor of plaintiff and his findings were, I think, sustained by the evidence. It is, however, clear that the evidence did not so greatly preponderate in favor of the defendant as to justify the court in reversing the judgment on the ground that the conclusions arrived at by the referee were against the weight of evidence.

I have arrived at this result after extended examination of the case, but no good purpose would be subserved by a reference to the testimony which has led me to that conclusion.

The questions of law presented are not important and do not require extended consideration. After the agreement of October, 1882, was made it cannot be said that the relations that existed between the plaintiff and his brother were such as authorized plaintiff’s brother to bind him by special contracts made for him.

The referee has found that the plaintiff and his brother were not partners and that finding is amply sustained by the evidence. Plaintiff’s brother was not an attorney and the contract was made with the plaintiff alone.

Under the circumstances as they appear, even admitting that the referee believed the plaintiff’s brother and the defendant as to the agreements that they made between themselves as to the compensation to be paid to plaintiff for services he was to render, I think the referee was justified in finding that those agreements were not binding upon the plaintiff unless communicated to and ratified by him, and such knowledge of the agreements or ratification was expressly and strenuously denied by the plaintiff.

The question having been left to the determination of the referee, and he having found the disputed questions of fact in favor of the respondents upon evidence which is sufficient to sustain the finding, and no principle of law having been violated that requires a reversal of the judgment, I think the judgment should be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.