Webster v. Loeb

BLAND, P. J. (after stating the facts). — 1. The uncontradicted evidence is that the partnership of B. F. and J. B. Webster was special and limited in its scope and purpose, and the evidence that was admitted, as well as that which was excluded by the court, ■shows that B. F. Webster only was employed by Epstein to bring and prosecute the land suit. The evidence further shows that the partnership between the Websters was dissolved prior to the employment of plaintiff, and the evidence of both plaintiff and defendant shows that' defendant agreed to pay plaintiff for his services, and it is not denied that plaintiff prosecuted the suit to a final determination in the circuit court under his contract with the defendant. We think, therefore, the issues were narrowed down to the value of plaintiff’s service and that the court very properly refused to direct a verdict for the defendant. [145] 2. Complaint is made of the following instruction given on the part of plaintiff: “3. The jury are instructed that the plaintiff is not precluded from recovering a larger amount by the rendition of the bill for services offered in evidence on behalf of the defendants; that the rendition thereof was an offer to accept the amount stated therein for certain services alleged to have been rendered to defendants therefor, provided the same was paid within a reasonable time; and that if the same was not paid within such a time, then the plaintiff can recover the reasonable value of such services together with the reasonable value of any services thereafter renderéd to defendants in the same litigation, if they find for him under the other instructions given.”. Martin v. Beal, 26 Ind. 234, was a suit by an attorney on a quantum meruit for professional services rendered for the defendant. Prior to the beginning of the suit plaintiff rendered a bill for his services to the defendant. The bill was not accepted or paid and the plaintiff sued for and recovered a sum in excess of the bill. It was contended on the trial that he could recover no more than he claimed in his bill as rendered. In respect to this contention, the court said: “In our judgment, the demand upon the appellant for payment of a sum named could only be regarded as a proposition to receive that amount in discharge of the debt, and as furnishing evidence to the jury of the value placed by the appellee upon his own services. Payment of the sum demanded would have been an acceptance of the proposition, and no amount having been fixed'by previous contract, would have been conclusive upon the parties. In the present case there was evidence from which the jury might find that the proposition was not accepted, and that the services were of greater value than the sum demanded.” A like ruling upon like facts was made in Brauns v. City of Green Bay, 78 Wis. 81, [146] in the case of civil engineer suing for the value of his service. In Williams v. Glenny, 16 N. Y. 389, it was ruled: “The presentment by a party to his debtor of an account in which he charges a gross sum for services for which he is entitled to be paid quantum meruit, there being no payment nor settlement of the account, does not preclude the creditor from showing what the services were reasonably worth, and recovering a larger sum than that at which they were so charged by him.” A bill rendered by an attorney for services to his client but not assented to by the client, was ruled in Wilson v. Railroad, 31 Minn. 481, not to preclude the attorney. from suing for and recovering a greater sum than that for which the bill was rendered. The rendition of the bill by plaintiff is some evidence of the value plaintiff himself put upon his services and if it had been accepted by defendant, plaintiff could not recover a greater sum; but it was not accepted and it was competent for the plaintiff to show that his services were of greater value than he had estimated them, and had the instruction so declared the law there would be no occasion to reverse the judgment. But the instruction withdrew from the jury the evidence of the value plaintiff placed upon his own services (shown by the rendition of the bill) and it is for this reason erroneous. It is also erroneous in that it told the jury the rendition of the bill was an offer to' accept the amount named in it if paid within a reasonable time, when there is no evidence whatever that any such condition or qualification was indorsed on the bill or stated in the plaintiff’s letter transmitting it to the defendant. The contrary appears both by the bill and by the letter transmitting the same. These errors, we think, Avere prejudicial, therefore, we reverse the judgment and remand the cause. All concur.