Barney v. Fuller — 39 N.Y. St. Rep. 926

Majority

p. 926

Martin Barney, Resp’t, v. Louis E. Fuller and Truman K. Fuller, App’lts.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

1. Attorneys—Money had and bbcexved.

In an action for moneys left with attorneys to be repaid on demand and for moneys received by them for plaintiff the defendants claimed' that they had performed sei vices for the plaintiff under an agreement by which they were to receive, if successful, a sum exceeding the amount claimed, and subsequently agreed to accept said amount in satisfaction. Plaintiff denied such agreement, and testified that defendants were to receive a certain sum per day and expenses. Feld, that the question as to the existence of an agreement and its nature was properly submitted to the jury.

3. Same—Evidence.

In such action proof is admissible that when the money so left was demanded defendants did not inform plaintiff that they had made a settlement of his matters.

3. Same.

In such a case evidence of the value of defendant’s services is admissible as bearing on the question whether it was probable that plaintiff made the agreement claimed by defendants.

4. Trial—Exceptions.

An exception to the admission of evidence is not available where such evidence is afterward stricken out on motion of the excepting party.

Appeal from judgment in favor of plaintiff, entered on verdict for $2,208.47, and from order denying motion for a new * trial on the minutes.

Action for money had and received.

T. K. Fuller, for app’lt, L. E. Fuller; L. E. Fuller, for app’lt, T. K. Fuller; Henry Purcell, for resp’t.

—The relation of attorney and client formerly existed between the plaintiff and defendants. The plaintiff claims that while the defendants were acting as his attorneys he left with them the sum of $930, to be retained by them until called for by him; that they also subsequently received the sum of $1,200 on a settlement of his affairs, which belonged to him; that he after-wards demanded this money of them, and they refused to deliver it to him. This action was based on these claims, and was to recover the amount thereof, $2,130, with interest. The defendants claim that, although .they received the amounts of money mentioned, the former sum was actually paid to them by the plaintiff

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for their services as his attorneys, and that, alter the latter amount was received by them, it was agreed between the parties that the sums so received, together with other smaller sums paid them by the plaintiff, amounting to $120, should be retained by them as compensation for the legal services they had performed for him, their precise claim being that they had made an agreement with the plaintiff whereby they were to receive the sum of $3,000 for their services if they were successful; that they were successful, and therefore legally entitled to that sum, but that they subsequently agreed to receive the foregoing sums in full satisfaction of their claim, which was agreed to by the plaintiff. The plaintiff • denied that there was any agreement by which the defendants were to be paid $3,000, or any settlement by which they were to retain the .amount in their hands in compensation for their services, but claimed that they were to be paid ten dollars per day therefor, and such sums in addition as their expenses should amount to while they were absent from home on his business. The evidence as to what the agreement was between the parties was conflicting. The defendants testified that they were to have $3,000 if successful. This the plaintiff denied, and testified that the agreement was that the defendants were to have ten dollars per day and expenses when absent from home on his business. The defendants in turn denied that such was the agreement. Under this evidence we think the questions whether the agreement was as'testified to by the defendants or as testified to by the plaintiff, or whether there was any agreement whatever between the parties as to the amount of compensation the defendants were to receive for their services, were questions for the jury. These questions were properly submitted to the jury, and its determination of them should not, we think, be disturbed.

The appellants contend that no demand of the moneys in their hands was made by the plaintiff before this action was commenced ; that such a demand was a condition precedent to the plaintiff’s right of recovery; and hence that the judgment and order should be reversed. An examination of the evidence contained in the appeal book does not justify this claim. We think it discloses that a sufficient demand was made before the commencement of this action to entitle the plaintiff to maintain it.

On the trial the plaintiff was permitted to prove that when he called upon the defendants for the $930 left with him they did not tell him that they had settled with Mullin & Griffin. We find no error in this ruling. The defendants were his attorneys. They had made a settlement of his matters when he was at their office asking for the money he claims to have left with them to be returned to him. The plaintiff was entitled to show that they did not inform him of that fact. It might well bear upon the defendants’ method of transacting business, and the consequent value of their services. Moreover, it bore upon the probability as to whether that sum was left as plaintiff claimed, or was paid to them, as claimed by the defendants. If the plaintiff did not know of the settlement, it would be more probable that he demanded

p. 928

the mtiney that he had paid to the defendants than if he knew that the settlement was completed and his rights secured. Again, it explained why the remaining $1,200 was not mentioned at that time. We think the court properly admitted this evidence.

The court committed no error in allowing the plaintiff to prove the situation of the matters to which the defendants’ employment related. This proof tended to show the character of the services performed by the defendants, and would aid the jury in determining their value.

We think the proof of the value of the defendants’ services was admissible as bearing upon the question whether it was probable that the plaintiff made the contract claimed by the defendants. Besides, the defendants had- a lien on the money in their hands for the services performed by them; and, in case the jury should find that neither the contract claimed by the defendants nor the one claimed by the plaintiff was in fact made, the proof was proper to enable the jury to determine the amount of the defendants’ claim for services, and thereby to determine the amount of money held by them that belonged to the plaintiff. This proof was admissible under the pleadings. The action was for money in defendants’ hands belonging to the plaintiff. The defense was, that under a contract with the plaintiff defendants were to have $3,000 for their services, and that they accepted the amount in their hands as payment in full therefor. There was no reply. None was necessary. The facts were not set up as counterclaim, but as defense only. The plaintiff’s proof was that the defendants agreed to work for ten dollars a day and expenses. The jury was not bound to believe either party as to what the contract was. It was justified in finding that the plaintiff testified truthfully when he testified that did not agree to pay the defendants $3,000 in case of success,, and also in finding that the defendants’ evidence that they were not to receive ten dollars a day and expenses as a full compensation for their services was true. In that event the evidence was proper to aid the jury in determining the value of such services.

We find no error in the exclusion of the evidence of the witness Mullm that he suspected that plaintiff would raise a question over the power of attorney given to one of the defendants. His suspicions were not proper evidence for any purpose.

One Thiebault was called as a witness to sustain the character of the plaintiff, and on the redirect examination testified that he once heard plaintiff’s honesty called in question by a Mr. Angel. He was then asked: “ What did he say ? ’’ This was objected to. The court said: “ I think, in answer to the cross-examination, it is competent.” The question was then answered. The defendants thereupon asked to have the answer stricken out, which was done. As -the defendants did not see fit to rely upon their exception, but moved to strike out the evidence, which was granted, we do not think the exception available.

We fail to find any error prejudicial to the defendants in the hypothetical questions put tc the witness Ayling on his cross-examination. He was called by the defendants as an expert witness, and had answered an hypothetical question put by the defend

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ants. On the cross-examination questions were asked, based upon different hypotheses, which included the plaintiff’s theory as to the situation of the plaintiff’s affairs, and what was in fact done by the defendants.' We think this was proper.

The judgment should not be disturbed on the ground that the damages were excessive It was sustained by the evidence. Therefore, as there were no rulings requiring a reversal, the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

. Hardin, JP. J., Martin and Merwin, JJ., concur.