Poppers v. Schoenfeld

Mr. Justice Adams delivered the opinion of the court. It is apparent from the preceding statement, the theory of the trial court was that in a suit by an attorney at law against his client, to recover compensation for professional services performed by the former for the latter, proof of an account stated is conclusive as against the client. Hence the court ruled that appellee could not be examined as to the items of his account. Gruby v. Smith, 13 Ill. App. 43, was a suit by the appellee, an attorney at law, against the appellant, for professional services. The court intructed the jury thus: “ The jury are instructed that in an action upon an account stated, the original form of evidence of the debt is unimportant, for the stating of the account changes the character of the cause of action, and it is in the nature of a new undertaking. The action is founded, not upon the original contract, but upon the promise to pay the balance ascertained. If.the jury find from the evidence that there were accounts rendered by both parties to this suit, the one to the other, and a balance agreed upon in favor of the plaintiff, and a promise made bv the defendant to pay that balance, then you must find for the plaintiff, not exceeding the amount so agreed upon and promised.” Of this instruction the court, McAllister, J., delivering the opinion, say: “ Hnder the peculiar circumstances of the case, that instruction was wrong and misleading, first, because, by the argument ingeniously embodied in it by the counsel who drew it, and inadvertently overlooked by the court, the jury would be drawn to the conclusion that an account stated was something which rendered the original merits or extortionate character of the plaintiff’s charges entirely immaterial, and that such account stated was absolutely conclusive upon the defendant. Such was the rule in the early days of the common law. In Truman v. Hurst, 1 Term 42, Lord Mansfield said : ‘ What is an account stated % It is an agreement by both parties, that all the articles are true. This was formerly conclusive; but a greater latitude has of late prevailed in order to remedy the error which may have crept into the account in surcharging the items.’ It is only prima facie evidence of the correctness of the account. Perkins v. Hart, 11 Wheat. 237. ‘It is not material when the admission was made, 'whether before or after action brought, if it be proved that a debt existed before suit, to which the conversation related. But whensoever such admission was made, it is not now held to be conclusive, but any errors may be shown and corrected under the general issue.’ 2 Gréenleaf on £v., Sec. 128, and authorities in notes. The instruction was erroneous, secondly, because, while purporting to give to the jury all the elements necessary to a recovery, it wholly omits any reference to the relation of attorney and client, and whether the defendant was fully and fairly informed in respect to material facts. The parties not dealing upon a footing of equality, those matters should have been embraced.” Hopkinson v. Jones, 28 Ill. App. 409, was a-like suit. The plaintiff, Jones, “ rested his case on proof of an account stated, without attempting to show what services he had rendered, nor what such services were worth.” Ib. 416. The defendant, while testifying in her own behalf, was asked: “ Can you mention some of the facts in reference to the charges % Do you remember the fact that there was anything said about a lump charge of $5,000 % ” Ib. 422. The question being objected to, the trial court ruled against it. The Appellate Court held the ruling error, saying : “ The question asked of the defendant opened up a branch of the case which she was refused the right to investigate, and that was as to the right of the defendant to go back of the alleged settlement and statement of the account (even ■ conceding that such settlement and statement had been made), and look into the fairness and reasonableness of the charges made as they grew out of the original transaction. The court in the admission and rejection of the evidence, as well as in the instructions given and refused, seems to have proceeded on the theory that a statement of account made between attorney and client, -was conclusive upon the client. This may be the rule as among strangers where no relation of confidence or trust exists, and where neither has a right to look upon the other for protection against fraud or oppression, or undue advantage. But this rule, if it ever had any existence as between persons holding confidential trust or dependent relations toward each other, seems to have been relaxed as to them.” Coffee v. Williams, 103 Cal. 550, was an action by a partner against his copartner, on what the plaintiff claimed to be an account stated. A number of questions were asked the witnesses for the defendant, in regard to items of the account, to which objections were sustained. The Supreme Court held the ruling error, saying : “ The foregoing questions, and many others of a similar kind, should have been allowed. It would certainly be difficult to believe that the defendant acquiesced in the alleged account stated and promised to pay the alleged balance, if the things which he sought to prove are true.” In Gruby v. Smith, supra, the court say of an account stated, “ It is only prima facie evidence of the correctness of the account,” citing Perkins v. Hart, 11 Wheat. 237. We are of opinion that the ruling of the court against examination in regard to the items of the account in evidence, was error, prejudicial to appellant. During his address Mr. Peterson, counsel for the plaintiff, made the following statement: “ This man Poppers has had a great deal of litigation. He is well known here. He has lived in Chicago for thirty years.” Mr. Hunt: “ I object to the remark and ask that it be stricken out.” The Court: “Ho, he is well known.” Mr. Hunt: “ Can he .infer from that that he has had a great deal of litigation % ” The Court: “Ho.” Mr. Hunt: “ That is what I object to.” The Court: “ They will assume that he has had a great deal of litigation by looking at these statements.” Mr.’ Hunt: “ I object to the ruling and the language of the court in ruling on the motion.” To which ruling of the court defendant, by his counsel, then and there duly excepted. Mr. Peterson, continuing his address to the jury, said: “ He is in the furniture installment business. He is a pawnbroker and has been for years. He claims he has not been in the pawnbroking business for the last eighteen years.” Mr. Hunt: “ I object to the statement and ask that it be stricken out.” The Court: “You had better not, because the time is up.” To which ruling of the court defendant, by his counsel, then and there duly excepted. While we do not hold the remarks of counsel for appellee and of the court above quoted reversible error, we think them objectionable. The fact that a party has had a great deal of litigation, if true, or the fact that he has been a pawnbroker, should not operate against him in the cause on trial. He is as much entitled to a fair trial as if he had never been a party to a suit before and had never been a pawnbroker. The remark of the court in the presence of the jury, “ They will assume that he has had a great deal of litigation by looking at these statements,” was improper. It assumes that the statements in the account in evidence are true, and, in effect, tells the jury to assume from such statements that appellant had had a great deal of litigation. While we do not approve the instruction quoted in the preceding statement, we can not consider the giving it as ground for reversal, the giving it not being assigned as error.. For the reason that the court excluded competent evidence, the judgment will be reversed and the cause remanded.