Dyer v. Sutherland

Mr. Justice McAllister delivered the opinion of the Court: The right of one rendering services for another to have their value estimated under a quantum meruit, upon the basis of commissions, as was done in this case, can only arise out of general custom. When such a custom exists in reference to certain kinds of business, as for instance, among real estate brokers, any one actually or presumptively having knowledge of it, and employing them in their business, without special contract, will be presumed to have done so with reference to such custom. It will impliedly enter into the legal obligation, and furnish the basis for fixing the amount to he paid for the services. But we are unable to perceive how any such undertaking can be implied from the circumstances of this case. If the custom existed among those whose professed business was that of real estate brokers, to charge commissions after the manner plaintiff was sustained in doing in this case, still the question arises, where is the basis for the undertaking—from what is it to he implied ? Jones & Sutherland were attorneys at law, and not real estate brokers. They, as such attorneys, were under an engagement with Dyer to do his ordinary law business, for the use of his offices. That engagement subsisting, he calls upon one of them, without any thing being said as to compensation, to do this business for him; and it is of a kind which an attorney who had undertaken to do a client’s general business might well be called upon to do, either by himself or clerk. How, is the law so unreasonable, so disregardful of circumstances and intention as to go wholly outside of both and imply an undertaking which could only be raised upon a different state of facts % Dyer undoubtedly intended this employment as coming under the general engagements between him and Jones & Sutherland, and presumptively it did. But if it did not, the law cannot justify the fiction of regarding these attorneys as real estate brokers for the purpose of this transaction, and imply an undertaking that their employer never could have thought of having laid upon him. There being no undertaking implied to pay commissions, it follows that the court erred in sustaining plaintiff’s objection to defendant’s inquiry upon cross-examination as to the value of plaintiff’s services by the day. While that might not have been the exact standard for measuring the value of these services, it would have been a proper ingredient, and the question should have been answered. We are of opinion that the court erred in excluding the release offered in evidence. If the services were rendered under the arrangement of Jones & Sutherland as to paying rent for the use of Dyer’s offices, then they were clearly a co-partnership matter. So, also, if they were within the range of the partnership purposes, and treated as such by the partners, although beyond what was intended as Dyer’s ordinary legal business. That the parties themselves, that is, Jones & Sutherland, treated it as within the partnership, there is no doubt. In the first place they were charged upon the partnership books. This was done by Jones, but with Sutherland’s full recognition, because he subsequently brought a suit in the circuit court against Dyer, upon the account, in his name and that of Jones. Ho act could be more significant. Under these circumstances, Dyer was warranted in settling and obtaining a release of the claim from Jones. If he was a joint creditor, and Sutherland so held him out, he had as complete a legal right to settle and discharge the debt as Sutherland, or as both of them together; and after so holding him out, Sutherland is estopped from denying that Jones was a joint creditor. Whatever of fact might be involved was for the jury. The exclusion of the release was a palpable error. The judgment is reversed and cause remanded. Judgment reversed,