63 Ind. App. 86 | Ind. Ct. App. | 1916
This is a suit to recover money alleged to be due appellee from appellant. The complaint was in four paragraphs. The first was for money had and received. The second paragraph alleges in substance that on January 11,1908, appellant received from William Lowe Eice, receiver, $3,-441.63 belonging to appellee, and then and there agreed to pay the same to her; that before bringing this suit, on July 27, 1910, appellee demanded payment of said sum from appellant and payment was by him refused. The third paragraph avers that appellant, a practicing attorney, was employed by appellee to collect for her certain promissory notes; that he collected thereon $3,441.63 on January 11, 1908, and on January 16, 1908, paid appellee the sum of $2,306.90. and retained $1,135.73 as attorney’s fees; that on July 27, 1910, appellee demanded from appellant the sum of $791.75 and payment was refused; that ten per cent, of the amount collected was a reasonable fee for appellant’s services; that the amount retained by him was exorbitant and unreasonable. The fourth paragraph is substantially like the third except it is alleged that the notes provided for five per cent, attorney’s fees, and that appellant agreed to accept that amount in payment for liis services.
The complaint was answered by a general denial and by a paragraph of special answer, which set up in detail appeL lant’s employment and services as attorney for appellee; that at the time of his employment he informed appellee that his fee would amount to from twenty to forty per cent, of the amount collected; that he charged and retained for his fees thirty-three per cent, of the amount collected; and that appellee stated that such fee was satisfactory to her and it was agreed that the sum of $1,135.73 was due him as attorney’s fees. To the special answer appellee filed a reply of general denial. A trial by jury resulted in a verdict for appellee for $300.
The error assigned and relied on for reversal is the over
Appellee contends that the idea of an account stated between the parties is an afterthought of appellant, and that there is nothing in the pleadings or proceedings of the trial up to the filing of the motion for a new trial to suggest such theory; that, on the part of appellee, the contention was that appellant owed her money received by him as her attorney and not accounted for to her; that the amount retained by him as attorney fees was unreasonable and exorbitant and was never agreed to by her; that appellant defended the suit on the ground that the amount retained by him was a fair and reasonable fee, and that appellee had given her assent thereto.
So in either view of the ease we should not be warranted in reversing the judgment for there is evidence tending to sustain it. Neither can we say the amount is excessive. We find no reversible error. Judgment affirmed.
Note. — Reported in 114 N. E. 6. Account stated, receipt of statement, effect, Ann. Cas. 1015A 694; 134 Am. St. 1021; 136 Am. St. 39. See under (2) 6 C. J. 708; (4) 1 C. J. 678; (5) 1 Cyc 450; 1 C. J. 705; (6) 1 Cyc 376; 1 C. J. 691.